The Indian Child Welfare Act (ICWA) was passed by Congress in 1978 to address the widespread removal by the state of Indian children from their families. I write this in nearly every brief I write and say it nearly ever talk I give. It’s rote, but every piece of it is important. The act is named for Indian children. It is a federal law passed more than 30 years ago. It is a federal law that applies in state court. State actors (social workers, judges, and guardians ad litem) removed Indian children for reasons usually governed by non-Native cultural standards. And the State took children from their parents, permanently.
ICWA contains a number of provisions to prevent removal on primarily cultural reasons. The main effect of these provisions is to slow down the process of removal. This slowing down is the purpose of the law, but is also the a cause of resentment among the people who are bound by the law. Recently, in South Dakota, the Oglala Sioux, Rosebud Sioux tribes, and parents sued the Department of Social Services for removing children in violation of the Due Process clause and ICWA. Oglala Sioux Tribe v. Van Hunnik survived a motion to dismiss, the plaintiffs were successfully certified as a class, and recently the South Dakota courts in one county were forced to turn over the transcripts for the emergency “48 hour hearings” where the violations are alleged (the judges objected, but the court reporters were then required to turn them over under the All Writs Act).
One of the main arguments against turning over these transcripts is the state-created expectation of privacy because the hearings are closed. Not all states have their abuse and neglect (or “child in need of care” or “48 hour hearing” or “child in need of protection”) hearings closed. In Michigan, the hearings are open, as they are in Minnesota. Both states also have ICWA court monitoring programs in various counties. The privacy arguments against open hearings for both parents and children are real. However, the actions of the South Dakota courts shows what happens when hearings are closed (hearings happen in less than 2 minutes, no evidence for removal, etc.). Open hearings have their problems (process familiarity, too fast, difficult to hear, assumption that parent’s attorneys are explaining the process outside of the courtroom, lack of privacy), but closed hearings can lead to a significant and troubling abuse of the process.
In her book, Ordinary Injustice, Amy Bach discusses issues with criminal hearings where all of the parties know each other except the accused. The same happens in abuse and neglect cases. One of her proposed solutions is monitoring hearings by outside observers. This is the same goal as ICWA courtroom observation projects–ensuring compliance with the law through the presence of outside observers. The South Dakota case demonstrates what can happen when concerns with privacy trumps the benefit of sunshine.