Another Problem with ICWA –

Dec 092008

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Prevailing social and cultural standards of the Indian community?

Exclusive jurisdiction by the tribe is scary enough for many foster and adoptive parents, but imagine how it feels for birth parents, both tribal and non, that have chosen to raise their children outside of the tribe.

If these parents should unexpectedly die, ICWA requires that “the prevailing social and cultural standards of the Indian community in which … extended family resides…” be applied in placement preferences.” 25 USC 1915(d). There is no other race in the United States who are denied parental right of choice in this way.

The question arises, “What is referred to by social and cultural standards?”

If it is referring to traditional Indian Spirituality, the 1st Amendment of the Bill of Rights states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

If it is traditional culture that is being referred to, such as language and food gathering methods, many elders, but fewer young people, practice these on the reservations today. Many teenagers are simply not interested enough to work at the language, and few honor ancient ways of hunting, fishing or harvest that was traditionally considerate and took only what was needed for the family. Does social and cultural standards refer to a romantic image or reality?

This is not to say that there are no tribal members that practice tradition. There are. But tradition is not the current standard on most reservations. There is still interest in art and craftwork, both traditional and modern approaches, but this interest in Indian art crosses racial lines and is enjoyed all over the world. Is it for art that we are placing children under tribal jurisdiction?

If the above isn’t “prevailing social and cultural standards, then what is?

Sadly, the current cultural and social standards of many reservations (not all) include gambling, gang activity, promiscuity, drug and alcohol abuse, crime, unwed pregnancies, violence in and out of the homes, and child neglect. On top of all that, there is epidemic corruption within many tribal administrations.

This is not to say that reservations alone have problems of alcoholism and corruption. All of these problems can be found in any neighborhood, anywhere. But it does appear that on some reservations, these problems are a prevailing cultural and social standard.

So just what is Congress mandating when it states that social and cultural standards of the reservation be applied?

The problem is that Congress – based on faulty assumptions concerning tribal standards – is mandating that OUR children – who aren’t owned by the tribes – be raised under less than safe conditions if we are no longer able to raise them.

In mandating that the tribes have jurisdiction over OUR children, Congress is mandating that OUR children receive less concern over their best interests, and less child protection than children of other heritages would recieve under the same circumstances.

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