The Indian Child Welfare Act (ICWA), the author argues, was designed to prevent the removal of Indian children from their tribal culture. This was accomplished by providing minimum standards for removing Indian children from their homes, and by placing removal decisions within tribal jurisdiction. Courts, however, have applied an "existing Indian family" exception to the ICWA. This exception limits the application of the ICWA to cases where the Indian child is to be removed from an "existing Indian family," which excludes many removal cases, such as those where the child does not have a sufficient bond with an Indian parent. The author argues that this exception is flawed and defeats the purpose of the IWCA by removing jurisdiction over the removal of Indian children from tribal authorities to state courts.
Wendy T. Parnell,
The Existing Indian Family Exception: Denying Tribal Rights Protected by the Indian Child Welfare Act,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol34/iss1/8