The Waning of the Indian Child Welfare Act: How Mediation May Help Save the Act and Preserve its Original Intent

Authors

Alice Wade, Benjamin N. Cardozo School of Law

Abstract

This note proposes a solution to the current crisis of the Indian Child Welfare Act, by establishing mediation forums both for parents of Native American children not domiciled on the reservation, and for tribal members and tribes wishing to utilize state courts when seeking to have their children adopted by non-Native American families. Part A of Section II provides clarification on the definitions of Native American for the purpose of the Act. Part B of Section II discusses the common law origins of the Act and court created exceptions to it. Part C of Section II discusses jurisdiction over Non-Native American parents by Native American tribes. Part D of Section II describes mediation programs used by Native American Tribes, with a focus on Navajo Peacemakers. Part E of Section II discusses the legislative foundation for cooperation between tribes and states. Section III examines some of the potential pitfalls of mediation in ICWA cases and potential solutions. Section IV proposes mandatory mediation in cases falling under 1911(b) of the Indian Child Welfare Act.

Disciplines

Dispute Resolution and Arbitration | Jurisdiction | Law

Recommended Citation

Alice Wade, The Waning of the Indian Child Welfare Act: How Mediation May Help Save the Act and Preserve its Original Intent, 18 Cardozo J. Conflict Resol. 829 (2017).
Available at: https://larc.cardozo.yu.edu/cjcr/vol18/iss3/12