ICWA and Military Families
I want to thank Solangel for having me here at the blog for the month of May. I’ve enjoyed writing posts about our work at the Indigenous Law and Policy Center.
Yesterday I was part of a roundtable discussion at Law and Society with a number of Indian law scholars who all talked for about 10 minutes on their current projects. The eight projects covered everything from the oil spill clean up process to ongoing treaty rights cases to the effect of extractive industry development on human trafficking. All of them were grounded in specific needs for tribes and tribal attorneys. It was an impressive panel.
I spoke about my latest writing project, the intersection of the Indian Child Welfare Act and military families. In Adoptive Couple v. Baby Girl, the Supreme Court based much of its discussion on the biological father’s “abandonment” of his child. Nowhere in the opinion did the Court mention the father’s military service and his year-long deployment to Iraq.
The law that prevented the adoption from moving forward during the father’s deployment, the Servicemembers Civil Relief Act, was amended in 2008 to include any child custody proceeding in the cases that could be stayed when a servicemember cannot be present at the court hearings. However, during the time the father was deployed, the baby stayed with the potential adoptive couple. In a family law situation, the length of a child’s placement receives increasing weight the longer the placement. While the South Carolina courts found that the child should be placed back with her father under the Indian Child Welfare Act, there was reluctance to do it based on the length of time the potential adoptive couple had had the baby. Cases involving service members need to be stayed, but the stay does not contemplate the ramifications on a family law case like Adoptive Couple.
Native people serve at a proportionally higher rate than other groups. In the case of active duty service members, they have the possibility of having to ask a state court to enforce not one relatively unknown federal statute, but two. Investigating how these play out in the case law, and also how the active efforts to preserve the Indian family (as required by ICWA) can be defined include specific services for Native veteran parents are two of the areas I’m working on this summer.