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Indian Child Welfare Act Of 1978
ICWA is a Federal law that takes precedence over the local adoption laws of every state and gives Native American Indian Nations and Tribes, including the Alaskan Aleuts, the right to control adoptions that involve their tribal members, the children of their tribal members, those individuals that could become tribal members, or even those individuals that a tribe would otherwise give appropriate recognition to under the terms of ICWA, even though the required tribal affiliation has not yet been formally established. In any instance where the provisions of any state law might conflict with ICWA, ICWA will always prevail. ICWA recognizes that the role of Indian tribes is critical in the placement of Indian children, and provides that tribes have a legal interest in their children that is even greater than the competing legal interests of the biological parents of the child. ICWA also provides that an Indian child has an independent right to grow up with an active knowledge of its cultural roots and an opportunity to be involved in its Indian culture and heritage. ICWA applies to cases that involve both voluntary and involuntary terminations of parental rights, as well as to the adoption of Indian children or their placement in foster care.
Question: What type of jurisdiction did the Indian Child Welfare Act of the 1978 give to Native American tribal courts?
Answer: It is concurrent jurisdiction if you want to get technical about "what type"...but if Tribal courts decide they want to get involved in a custody case of an ICWA eligible child...jurisdiction should be transered to the tribe (this according to reg...not ALWAYS strictly adhered to unfortunately). Sometime, however, the tribal courts do not get involved...even still, priority for placement should be given to Native families and Native homes.
Question: After reading this do blacks think they are the only ones that got picked on.Native Americans were here first. Ill-treatment of Native Americans and Indigenous Peoples dates back to the arrival of the first settlers in the "new world;" however, I'll just touch on some recent history, specifically the Indian Adoption Project.
The Indian Adoption Project operated between 1958 and 1967 under the auspices of the Bureau of Indian Affairs, with support and funding from the Child Welfare League of America (CWLA). CWLA participation bestowed an air of legitimacy on the practice of removing Indian children from their families basically because the "white man knew better," and while adoptive placements under the Project itself were limited, it is estimated that more than one quarter of all Indian children were removed from their families and placed into white adoptive and foster homes or orphanages before the Indian Child Welfare Act of 1978.
In 2001, the CWLA Board of Directors passed a resolution expressing regret for that group's participation in the Indian Adoption Project,and for its failure
Born Chiricahua Apache on the Reservation in Arizona.
Answer: Horrible things were done both to Native Americans and Black people. Black people were kidnapped in the most horrible ways, separated from their land and family only to be treated like animals and be slaves.
Like you said, Native Americans were treated horrible too. Not just by taking away their children. They were also killed by white people who came to the "New World".
This is not a competition. The pain and suffering that one group went through, does not belittle the pain and suffering the other group went through. Horrible things were done, and we should all be aware that horrible things are still being done all over the world to people, just because they belong to a certain ethnicity or religion. We should all practice tolerance. We should all do our best to make sure these kinds of things do not happen again.
Question: Can I petition a federal court for a Writ of Habeas Corpus to compel a State District Court to...? ...produce a child pursuant to Title 25 of the United States Code, subsection 1920?
This statute is from the Indian Child Welfare Act of 1978. It basically states that if the child was improperly removed, the court must forthwith return the child to its parent.
The child WAS improperly removed, but the State District Court will not return the child.
This is a federal Act, which would give a federal court jurisdiction.
Also, the United States Supreme Court has ruled many times that Parents have Constitutionally protected rights to their children, so a deprivation of a Constitutional right is involved, which would allow Habeas Corpus to be applied.
What can be done, if not this, to compel the State District Court to comply with this federal statute?
Answer: Federal trumps state, BUT... they may decide not to step in. If the baby is in state custody by court order, honestly you're better off trying to negotiate with the child services division to return the child.
Technically, yes you can do a writ to compel a state judge or agency to comply, I've had clients in prison that went past their court ordered release dates and we had to ask for the federal authority to get them out, they actually sent US marshalls to remove them from the prison and set them free when the DOC refused, so same principle, but in our cases it was a clear cut date vs. actual date of release, you see, it wasn't an open ended custody issue.
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