Currently there is no clear guidance on the Indian Child Welfare Act’s (ICWA) application in the context of a civil commitment proceeding, which generally occurs at the state level. This Article argues that ICWA applies to any state court proceeding for civil commitment of an Indian child if the Indian parent cannot have their child returned upon demand. The plain language of ICWA provides for this reasonable interpretation. ICWA enacts rights for Indian children, their parents, and their tribes when a party seeks the removal of the Indian child for placement in an institution. Without adherence to these rights, an Indian child may be wrongfully and illegally removed from their parents. Additionally, a tribe’s sovereignty may be wrongfully and illegally impinged. Since these two practice areas are often siloed, the Article provides a checklist for practitioners to ensure that laws designed for the protection of Indians are observed in state court proceedings for civil commitment.
"THE INDIAN CHILD WELFARE ACT’S APPLICATION TO CIVIL COMMITMENTS OF INDIAN CHILDREN IN STATE COURT PROCEEDING,"
American Indian Law Journal: Vol. 9
, Article 5.
Available at: https://digitalcommons.law.seattleu.edu/ailj/vol9/iss1/5