353. An Overseas Analogue: The Indian Child Welfare Act 1978 (USA). The Australian history of large scale intervention in Aboriginal families, resulting in the displacement of many children from their families, has close parallels in comparable countries such as the United States and Canada: Responses in such countries are therefore of considerable relevance. By far the most comprehensive legislative attempt to deal with the issue is the Indian Child Welfare Act 1978 (USA). The Act was proposed and enacted in an attempt to respond to the alarmingly high percentage of Indian families broken up by the removal of their children by non-tribal public and private agencies, usually to be placed in non-Indian foster and adoptive homes and institutions. In the Act, Congress stated its fin ding that the States, in exercising jurisdiction over Indian child custody proceedings, had ‘often failed to recognise the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families’. In consequence, s 3 of the Act states:
The Congress hereby declares that it is the policy of this Nation to protect the best interest of Indian children and to promote the stability and security of Indian tribes by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.
The Act applies to all Indian ‘child custody proceedings’, broadly defined to include foster placements (where the parents cannot have the child returned on demand), adoptive or pre-adoptive placements, and proceedings for the termination of parental rights (eg wardship or ‘care and control’ proceedings) where the child is an ‘Indian child’ as defined. On the other hand it does not apply to ‘genuine’ criminal proceedings (ie those involving ‘a placement based upon an act which, if committed by an adult, would be deemed a crime’), or to an award of custody to one of the parents in divorce proceedings. In child custody proceedings as so defined, the Act both prescribes standards to be applied by State courts, and gives preference to the jurisdiction of Indian tribal courts with respect to their children. For present purposes, these aspects need to be treated separately.
354. Standards to be Applied in State Courts. Where State courts retain jurisdiction over Indian child custody proceedings, the Act imposes relatively strict standards at the different stages and to the different kinds of proceedings. Thus in cases involving involuntary termination of parental rights, s 102 provides:
(d) Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.
(e) No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
(f) No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
In cases of voluntary termination, special provision is made to ensure that parental consent is genuine and sustained, and that the consequences of consent are fully understood (if necessary through the provision of interpretation into the relevant Indian language). Consent may be withdrawn at any time before the final decree of termination or adoption, and even, in the case of fraud or duress, within two years of a final adoption decree. Even after parental rights have been duly terminated, the Act seeks to protect Indian children by maintaining them within their own extended family or community. Section 105 provides:
(a) In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.
(b) Any child accepted for foster care or pre-adoptive placement shall be placed in the least restrictive setting which most approximates a family and in which his special needs, if any, may be met. The child shall also be placed within reasonable proximity to his or her home, taking into account any special needs of the child. In any foster care or pre-adoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with –
(i) a member of the Indian child’s extended family;
(ii) a foster home licensed, approved, or specified by the Indian child’s tribe;
(iii) an Indian foster home licensed or approved by an authorised non-Indian licensing authority; or
or operated by an Indian organisation which has a program suitable to meet the Indian child’s needs.
Moreover, this preference principle is to be applied as nearly as possible in accordance with the standards of the relevant Indian community:
The standards to be applied in meeting the preference requirements of this section shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties.
Special provision is also made for notification to parents, custodians and the Indian child’s tribe, for their right to intervene in State court proceedings, and for legal aid and access to documents and reports. Where an adoption is terminated or set aside, a biological parent or previous Indian custodian has a right to the return of the child, unless such return would not be in the best interests of the child. These standards do not apply to temporary emergency removal or placement of a child ‘in order to prevent imminent physical damage or harm to the child’, although they do of course apply to any subsequent child custody proceedings with respect to that child. Nor do they apply if State or other federal law imposes a higher standard or confers a greater degree of protection on Indian children. In this respect the Act establishes a uniform minimum standard for Indian child custody proceedings throughout the United States.
355. Tribal Court Jurisdiction over Indian Children. From the United States’ perspective, an equally important — possibly more important — aspect of the Indian Child Welfare Act is the preference it establishes for Indian tribal courts. Section 101(a) of the Act provides that:
An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence of domicile of the child.
Where an Indian child is not domiciled or resident on the reservation, a State court is required to transfer a child custody case involving the child to the relevant tribal court upon request, unless a parent objects and ‘in the absence of good cause to the contrary’. Related provision is made for full faith and credit to be given to tribal court custody orders, for resumption of tribal court jurisdiction over custody proceedings, and for tribal-State agreements with respect to transfer of cases, concurrent jurisdiction, and care and custody of Indian children generally.
356. The Indian Child Welfare Act in Practice. The Indian Child Welfare Act has been generally welcomed in the literature, and by Indian organisations and communities, and has, apparently, gained increasing acceptance by State courts. Some criticism has been levelled at the various ‘escape clauses’ in the Act (eg the power of a State court to retain jurisdiction where there is ‘good cause’ to do so), but it seems that fears that such provisions allow State court judges to exercise ‘broad discretions to continue prior practices’ have, so far, proved unjustified. On the other hand the Act has been criticised as an unwarranted intrusion into areas of State responsibility and as subordinating ‘children’s rights to the rights of parents and tribes’. Fears have been expressed that the Act might indeed be, at least in part, unconstitutional on due process or equal protection grounds or as an intrusion into areas of State jurisdiction. There has not yet been a thorough examination of the constitutional issues, but the challenges made so far have failed, and the consensus of judicial and academic opinion is that the Act is substantially constitutional. Similarly, disagreement with the basic principles of the Act seems not to have been sustained. The Act has stimulated Indian tribes and organisations and government agencies to educate State and tribal judges and welfare personnel, to provide improved Indian child care programs, and to assume increased responsibility for care generally. Continuing difficulties relate more to areas excluded from the Act, in particular, voluntary foster-care programs. The Act does not apply to voluntary foster-care programmes where there is no termination of parental rights. Several State courts have also held that the Act does not apply to intra-family disputes. There have also been difficulties with notification of placements under the Act, and especially with continuing funding of Indian child care programs. A further problem has resulted from the narrow construction placed by some courts on the words ‘Indian custodians’ as a person who may have standing to intervene and have the child placed in the extended family. Nevertheless the Act is regarded as a distinct improvement upon the previous position. A rather curious indication of its success is provided by the following statement:
The American Association on Indian Affairs has compiled some statistics in the aftermath of the Indian Child Welfare Act of 1978 which point to an alarming number of native children coming from Canada to be adopted in the United States. Some American child welfare agencies have released data which indicate that virtually all of the native children they have placed for adoption have been from Canada. The Yukon Territorial government has even been reported as advertising in the US media that they will subsidise vacation costs for a holiday in the Yukon for prospective adoptive parents of native children.
This may suggest that some of the demand for cross-cultural adoption stems from the needs of adoptive parents rather than of the children.
357. Canadian Experience. The Commission is not aware of legislation along the lines of the Indian Child Welfare Act 1978 (USA) in other comparable countries. However, in Canada there is serious concern about the policy and administration of Indian child welfare arrangements, and much work is being done to improve these. According to Hepworth:
There are approximately 300 000 status Indians and 750 000 non-status Indians and Metis in Canada; of these, over 40 per cent ie, 420 000 are children under 15 years of age. Over four per cent of Status Indian children and over 3.5 per cent of all Native Children are in the care of the child welfare services, both provincial and federal. The picture for all Canadian children in care is much less — 1.35 per cent.
It has been estimated that Native children constitute some 50 per cent of children in care in the western provinces and approximately 20 per cent of all children in care in Canada. The Manitoba Review Committee on Indian and Metis Adoptions and Placements found that there had been a ‘systematic delivery of [Indian] children beyond the boundaries of Manitoba with subsequent culture and identity loss’. Responses to this problem are taking a variety of forms.
Ontario Children and Family Services Act 1985 — Declaration of Principles. A Report by Associate Professor Morse of the University of Ottawa examined the options for change in Indian child welfare in Ontario. The Report did not recommend separate legislation for Indian child welfare, largely because of the constitutional difficulties associated with special provincial legislation in this field. It did, however, urge that general child welfare legislation be amended in such a way as to make it more responsive to the particular needs of Indian children. The Report emphasised the importance of Indian involvement at both the administrative and policy level of Indian child welfare arrangements. It called for proper recognition to be given to the important role of the extended family in child care arrangements in Indian communities, on the basis that the standards to be applied in interpreting the law should be those of the community to which the parents and children belong. In addition, the Report recommended that legislation should provide for validation of all adoptions conducted in accordance with Indian customary law. But it did not propose that Indian bands be given jurisdiction over Indian child protection cases. The Report was followed by a Provincial consultative paper suggesting a range of measures. In 1985 the Ontario Parliament passed the Children and Family Services Act. This provides that in both adoption proceedings and child protection proceedings the ‘importance, in recognition of the uniqueness of Indian and native culture, heritage and traditions, of preserving the child’s cultural identity shall be taken into consideration in determining the best interests of a child. In child protection proceedings where the court decides it is necessary to remove the child from its existing custody arrangement, the court shall in the case of an Indian or native person, consider whether it is possible to place the child with a member of the child’s extended family, a member of the band or native community or another Indian or native family. Should a child be made a society or Crown ward, the society having care of the child shall choose a residential placement for the child with a member of the child’s extended family, his band or native community or another Indian or native family if possible. In relation to adoption matters there appears to be no such specific child placement principle. The Act however does recognize customary care, defined as:
[t]he care and supervision of an Indian or native child by a person who is not the child’s parent, according to the custom of the child’s band or native community.
The Act enables the Minister to make agreements with bands and native communities for the provision of services, and for the designation of an Indian or native child or family service authority. Once designated under the Act, a child care agency is given considerable authority over child care cases, in a way not yet seen in Australia. Section 196 endorses consultation between any agencies providing services or exercising powers under this Act and native communities or bands about the provision of services or exercise of powers effecting children. Other Provinces have enacted, or are considering, child welfare legislation which is more responsive to Indian child welfare needs.
Spallumcheen Band By-Laws. There have also been developments in the way of administrative transfers of child welfare programs to Indian bands in Alberta, Manitoba and (in one case) British Columbia. Under the (British Columbia) Spallumcheen Band’s Child Welfare By-Laws which came into effect in June 1980, the Band is assigned exclusive jurisdiction over child care proceedings of children who are members of the Band, regardless of their residence. Where a child is in need of protection, the Chief and the Band Council have authority to determine its placement in accordance with Indian customs and in accord with the following order of priorities:
(a) with one of the child’s parents;
(b) with a member of the extended family living on the reserve;
(c) with a member of the extended family living on another Indian reserve;
(d) with a member of the extended family living off the reserve;
(e) with an Indian living on a reserve;
(f) with an Indian living off a reserve;
(g) as a last resort — with a non-Indian living off the reserve.
In analysing these priorities the Band Council is required to give paramount consideration to the best interests of the child. A decision of the Council may be reviewed by the General Meeting of the Band. Such decisions are not made by way of a formal judicial inquiry. The validity of the By-laws is open to challenge on the grounds that the Indian Act 1970 (Can) s 81 does not expressly authorise Indian bands to legislate for child protection. This is one reason why the Spallumcheen experience has not been followed elsewhere. A similar by-law passed by an East Kootenay Indian Band was disallowed by the Minister in October 1982.
Tripartite Agreement on Indian Child Welfare in Manitoba. In February 1982 the Federal and Manitoba Governments entered into a tri-partite agreement (the Canada — Manitoba — Indian Child Welfare Agreement) with the Four Nations Confederacy. The agreement delegates to the Confederacy responsibilities for the development and delivery of child welfare services on Indian Reserves in Western Manitoba. The agreement is not restricted to the membership of bands, but enables the delivery of services to all Indians residing on reserves covered by the agreement. The transfer to the Indian Child Care Agencies took place under the Manitoba Child Welfare Act s 7, which permits a Director of Child Welfare to invest a committee of ‘local citizens known to be interested in child welfare’ with the obligations and responsibilities prescribed by the Act. Thus Indian Child Care Services are subject to the Manitoba Child Welfare Act, which defines the standards of child protection, the mode of judicial decision making and the placement options for children found in need of protection. It does not specifically provide for Indian practices or customs to be taken into account. A review of the Agreement is one of the matters under consideration by the Manitoba Review Committee on Indian and Metis Adoptions and Placements. The Committee has recommended administrative procedures to be strictly followed in the placement of Indian and Metis Children. The procedures seek to ensure Indian and Metis involvement in the placement of children and that children are placed in culturally and linguistically appropriate homes.
358. The Relevance of the North American Experience. There are of course dangers in translating the North American experience into Australian legislation or administrative practice. It is possible to point to the differences in authority structures among American Indian tribes, compared with Australian Aborigines. American Indians, if not traditionally then certainly in modern times, appear to have placed more emphasis on established and structured authority systems than have Australian Aborigines. More importantly, in the United States, tribal sovereignty is still the basic premise of Indian law. But these differences are more relevant to questions involving tribal court systems than to implementation of a statutory child placement principle. In examining whether it would be appropriate for an Aboriginal child placement principle to be enacted, the similarities between the American Indian situation and that of Australian Aborigines are persuasive. The more important similarities include a history of high numbers of children being removed from their families and placed in substitute care outside their communities; continuing over-representation of Aboriginal children is the child welfare and juvenile justice systems; the desire of local groups and agencies to play an active role in the design and delivery of child welfare services relating to indigenous children; the traditional and widespread use of the extended family in child care arrangements, and their relatively low economic status when compared to that of the general community.
A survey of States with large Indian populations conducted by the Association on Indian Affairs indicated that approximately 25-35% of all Indian children were separated from their families and placed in foster homes or other institutions. Information cited in MP Guerrero, ‘Indian Child Welfare Act of 1978: A Response to the Threat to Indian Culture caused by Foster and Adoptive Placements of Indian Children’ (1979) 7 Am Indian L Rev 51, 53.
Indian Child Welfare Act 1978 (USA), s 2(4) (hereafter ICWA). See House of Representatives, 95th Congress 2nd Session, Report together with Dissenting Views to Accompany HR 12533 (1978), for an explanation of the purposes of the Act.
ICWA s 4(4). The definition includes any child who is a member of an Indian tribe, or who is eligible for membership and is the biological child of a tribal member. The Act is exceptional in federal legislation for American Indians in that it extends beyond tribal boundaries and membership to Indian children who are not themselves tribal members nor resident or domiciled on a reservation.
ICWA s 4(1).
ICWA s 103(a).
ICWA s 103(b), (c) and (d).
ICWA s 105(d). Power is given to the tribes to vary the order of preference established by s 105(a) and (b), provided that ‘the placement is the least restrictive setting appropriate to the particular needs of the child’: s 105(c).
ICWA s 102(a).
ICWA s 101(c);cf also s 104.
ICWA s 102(b) (c), 105(e), 107.
ICWA s 106(a).
ICWA s 112.
ICWA s 111.
For a brief account of the Indian court system in the US, see para 780-91.
ICWA s 101(b); see also Cohen, 348.
ICWA s 101(d); Cohen, 349. This is the only case in which State courts are required by law to give full faith and credit to tribal court orders.
ICWA s 108.
ICWA s 109.
Guerrero (1979); LA Marousek, ‘The Indian Child Welfare Act of 1978: Provisions and Policy’ (1980) 25 South Dakota L Rev 98; MT Jones, ‘Indian Child Welfare: A Jurisdictional Approach’ (1979) 21 Arizona L Rev 1123; J Limprecht, ‘The Indian Child Welfare Act — Tribal Self-Determination through Participation in Child Custody Proceedings’  Wisconsin L Rev 1202. More reserved, but still generally favourable is G Wamser, ‘Child Welfare under the Indian Child Welfare Act 1978: A New Mexico Focus’ (1980) 10 New Mexico L Rev 413, esp 428-9; B Davies, ‘Implementing the Indian Child Welfare Act’ (1982) 16 Clearinghouse Review 179. And see US Senate 96th Congress 2nd Session, Hearings before the Select Committee on Indian Affairs on Oversight of the Indian Child Welfare Act, 30 June 1980, esp 117-23 (Unger).
See esp RL Barsh, ‘The Indian Child Welfare Act of 1978: A Critical Analysis’ (1980) 31 Hastings LJ 1287 1319-20. For a review of State court decisions see T Buthod, ‘Children: An Analysis of Cases Decided Pursuant to the Indian Child Welfare Act of 1978’ (1982) 10 Am Indian L Rev 311.
HR Report (1978) 19; Limpreeht, 1217.
RS Fischler, ‘Protecting American Indian Children’ (1980) 25 Social Work 341. cf EL Blanchard and RL Barsh, ‘What is best for tribal children?’ id, 350 for a response.
HR Report (1978) 12-19, 35-41 (views of Department of Justice).
In re Melinda Twobabies (Unreported, Oklahoma District Court, 1979); In re DLL and CLL 291 NW 2d 278 (1980, SD Sup Ct).
See para 137 and works there cited.
See eg National American Indian Court Judges Association, (1980) 7 Indian Courts Newsletter 4-6; and the same Association’s publication, Linkages for Indian Child Welfare Programmes (1981, continuing). See also American Indian Lawyer Training Programme, Indian Child Welfare Act of 1978. A Law for our Children (1979).
s 4(1)(i). In the 1981-2 school year approx 1 000 Indian children were placed voluntarily in the Mormon Church Placement Program. Though probably the biggest, this only one of a number of similar programs.
Davies (1982) 184-8.
id, 193-6 and cf Barsh (1980) 1304, 1322.
s 101(c); Davies, 191.
BW Morse, ‘Indian Child Welfare: Options for change in Ontario. Final Report’, unpublished, Ottawa, May 1981, 34.
HP Hepworth, Foster Care and Adoption in Canada, Canadian Council on Social Development, Ottawa, 1980, 112. On Canadian Indian child welfare issues see id, 111-122; BW Morse, ‘Native Indian and Metis Children in Canada: Victims of the Child Welfare System’ in GK Verma and C Bagley, Race Relations and Cultural Differences, Croom Helm, London, 1983, 259; P Johnston, ‘The Crisis of Native Child Welfare’ (1982) 5 Canadian Legal Aid Bull 175, and works cited below.
C Chartier & O Mercredi, ‘The Status of Child Welfare Services for Indigenous Peoples of Canada; The Problem, the Law, and the Solution’ (1982) 5 Canadian Legal Aid Bulletin 163.
Manitoba Review Committee on Indian and Metis Adoptions and Placements (Associate Chief Judge EC Kimelman) File Review Report, Manitoba, April 1984, 52. In its Interim Report it found that ‘55% of all Treaty Indian children were placed outside the province of Manitoba as well as 40% of all Metis children but only 71% of all Caucasian children …’ Of the 55 placements made in the USA, 54 or 98% were Aboriginal children. These numbers could not, in the Committee’s view be justified as ‘what has been repeatedly referred to as “special needs placement”’: Interim Report, Manitoba, 26 May 1983, 6.
The distribution of legislative power in Canada is based largely upon lists of-exclusive federal and provincial powers. In Australia, by contrast, Commonwealth power (including s 51(xxvi)) is mostly concurrent, leaving the States free to legislate until the Commonwealth occupies the field.
One reason given was that before any recommendations could be made in relation to native courts there needed to be further review and discussion. id, 100, 101.
Ministry of Community and Social Services, The Children’s Act A Consultation Paper, Ontario, October 1982. See BW Morse, ‘The Children and Family Services Bill. Impact upon the Indian People of Ontario’, unpublished, Ottawa, 1984.
The Act has not yet been proclaimed.
s 37(4), 130(3).
s 53(5). See also s 54(2)(b), 54(4)(d), 60(4)(d) and 65(1)(e) relating to rights of the representative of the band or native communities which the child belongs to apply for access, review the child’s status or appeal.
The Lieutenant-Governor-in-Council may make regulations exempting an Indian or native children family service authority or band or persons caring for children under customary care from any provision of the Act or regulations and may prescribe matters requiring consultation between native communities and bands for the purposes of s 196: see s 206.
See eg Child Welfare Act 1984 (Alberta) s 73 which provides for consultation with the relevant Indian band council before making arrangements for or applying for orders in relation to the guardianship of an Indian child. However the legislation is on its face more concerned to ensure that Indian children do not lose Indian status and associated rights than it is to influence placement decisions: cf s 66. In addition several child welfare agreements have been entered infor for Indian and Metis child services agencies to provide services (both on-reserve and in an urban setting): D de Jong, Alberta Social Services and Community Health, Submission 493 (6 September 1985)
D Ahenakew, National Chief, Assembly of First Nations, Submission 336 (2 June 1982), and enclosures.
See generally JA MacDonald, ‘The Spallumcheen Indian Band By Law and its Potential Impact on Native Indian Child Welfare Policy in British Columbia’ (1983) 4 Can J Fam L 75.
By-laws, s 10, MacDonald (1983) 89.
s 12, 15, 18, 19 and 23.
MacDonald (1983) 90.
The delegation of responsibilities for child care to Indian organisations is not new. In Alberta employees of the Blackfoot Band Council have had authority to administer the Alberta Child Welfare legislation with respect to local children since 1975. There are a number of other examples.
Interim Report, Manitoba, 26 May 1983, 31-9.
See para 791.