31
* Neoshia R. Roemer is an Assistant Professor at the University of Idaho College of Law.
She is very appreciative to Family Law Quarterly and its editors for providing her a platform to
discuss a very important pedagogical topic and explaining how the Indian Child Welfare Act is
itself a form of family law.
Un-Erasing American Indians and the
Indian Child Welfare Act from Family
Law
NEOSHIA R. ROEMER*
Abstract
In 1978, Congress enacted the Indian Child Welfare Act (ICWA) as a
remedial measure to correct centuries-old policies that removed Indian
children from their families and tribal communities at alarming rates. Since
1978, courts presiding over child custody matters around the country have
applied ICWA. Over the last few decades, state legislatures, along with tribal
community partners and advocates, have drafted and enacted state ICWA
laws that bolster the federal ICWA laws. Despite four decades of ICWA,
trends in child welfare demonstrate that Indian children are still vastly
overrepresented in the child welfare system. Because tribal communities,
advocates, community partnerships, and scholars work tirelessly to both
ensure and improve ICWA compliance, ICWA still provides some of the
best outcomes for Indian children through both family reunication and/
or placement within their tribal communities.
However, family law often minimizes or mischaracterizes what the Act
does. While ICWA is a complex law and even an entire semester may not
fully provide justice to the breadth of the Act, this characterization of ICWA
creates a stigma around the law. Family law scholars and practitioners can
no longer overlook ICWA in conversations and teachings. Stigmatizing
ICWA in the classroom contributes to the erasure of American Indians
from our society at large and from our classrooms. This allows legitimized
Published in Family Law Quarterly, Volume 56, Number 1, 2022. © 2022 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
32 Family Law Quarterly, Volume 56, Number 1
racism against this community to seep into both the classroom and the
practice area.
Accordingly, this article discusses how family law classrooms can
incorporate ICWA into conversations on family law as a step in eliminating
bias against American Indians in the legal academy and in the profession.
This article describes some of the history around ICWA, how family
law feeds into the erasure of American Indians in the legal eld, some
misconceptions about ICWA, and how we can tie ICWA and other issues
impacting American Indians into our classroom teachings on family law.
Introduction
I must start this conversation with a simple fact: I am neither American
Indian
1
nor a tribal member. As a scholar and a citizen of the United States,
I am concerned by how often our conversations omit American Indians as
an entire population. In family law, that omission is not only a disservice to
our students and the populations they will serve, but it is a form of racism.
State and tribal courts hear family law matters involving American
Indians, like members of any other group, on a near daily basis. One such
matter is cases involving the Indian Child Welfare Act (ICWA).2 Most of
my scholarship and practice experience comes from this area. I rst learned
about ICWA and its application as a clinical law student. Then, through
my rst job as a Fellow in the Indigenous Law & Policy Center, which
houses the ICWA Appellate Project, I supported litigation in numerous
ICWA appellate cases with my mentor Professor Kate Fort. Kate Fort
is also neither an American Indian person nor a tribal member, but she
said something that set the tone for my scholarship. When pushed on the
matter of why a non–American Indian woman is such a steadfast ICWA
advocate, her response is that while she had no say in the matters of tribal
governments or communities, it is her responsibility to ensure that her state
court system—and others around the country—keep their promises and
legal obligations to Indian communities.
Promises and legal obligations to Indian communities serve as the
impetus in both this article and my approach to scholarship and teaching,
especially as a professor at the University of Idaho. This matters because
the University of Idaho is a land grant institution; the federal government
took tribal lands and used these lands to establish and support universities
1. For the purposes of this Article, I use “American Indian” and “Alaska Native” as opposed
to the more general “Native American” because these terms comport with the legal status of
federally recognized Indian tribes and tribal citizens.
2. Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901–1963.
Published in Family Law Quarterly, Volume 56, Number 1, 2022. © 2022 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Un-Erasing American Indians and the Indian Child Welfare Act 33
throughout the United States starting with the Morrill Act of 1862.3 Given
the spirit of the land grant institution, it is my absolute duty to ensure that
our students have at least a foundational knowledge of the context of these
promises and legal obligations even though I have no say over matters of
tribal governance. After all, ICWA inspires and precipitates a lot of the
conversations we have in modern family law classes: the right to family
privacy, the right to parent, parenting, and more. Indeed, ICWA is at the
heart of family law because it is about the American Indian family. Yet,
many family law classrooms either omit ICWA—and the American Indian
family at large—or unintentionally misrepresent the law.
In 1978, Congress enacted the ICWA as a remedial measure to correct
centuries-old policies that removed Indian children from their families and
tribal communities at alarming rates.
4
Since 1978, state courts presiding
over child custody matters around the country have applied ICWA. Over the
last few decades, state legislatures, along with tribal community partners
and advocates, have drafted and enacted state ICWA laws that bolster the
federal ICWA laws.
5
Despite four decades of ICWA, trends in child welfare
demonstrate that Indian children are still vastly overrepresented in the
child welfare system.6 Because tribal communities, advocates, community
partnerships, and scholars work tirelessly to both ensure and improve ICWA
compliance, ICWA still provides some of the best outcomes for Indian
children through both family reunication and/or placement within their
tribal communities.7
3. See Morrill Act of 1862, 7 U.S.C. §§ 321–29; see also Idaho’s Land Grant University, u
niv
.
oF
i
DaHo
, https://www.uidaho.edu/ui/land-grant (last visited Jan. 30, 2022) (stating that the University
of Idaho is Idaho’s Land Grant Institution); Kalen Goodluck et al., The Land-Grant Universities Still
Proting Off Indigenous Homelands, HiGH Country neWs (Aug. 18, 2020), https://www.hcn.org/
articles/indigenous-affairs-the-land-grant-universities-still-proting-off-indigenous-homelands.
4. See 25 U.S.C. § 1902.
5. See, e.g., or. rev. stat. § 419B.600 (“It is the policy of the State of Oregon to protect the
health and safety of Indian children and the stability and security of Indian tribes and families by
promoting practices designed to prevent the removal of Indian children from their families and,
if removal is necessary and lawful, to prioritize the placement of an Indian child with the Indian
child’s extended family and tribal community.”); see also m
inn
. s
tat
. § 260.753 (describing the
purpose of the state law, in part, as to “preserve the Indian family and tribal identity, including
an understanding that Indian children are damaged if family and child tribal identity and contact
are denied.”).
6. Tanya A. Cooper, Racial Bias in American Foster Care: The National Debate, 97 marQ.
l. rev. 215, 217 (2013).
7. C
asey
F
am
. p
roGrams
, H
oW
C
an
C
HilD
W
elFare
s
ystems
a
pply
tHe
p
rinCiples
oF
tHe inDian CHilD WelFare aCt as tHe “GolD stanDarD” For all CHilDren? (Mar. 2022),
https://caseyfamilypro-wpengine.netdna-ssl.com/media/22.07-QFF-SF-ICWA-Gold-Standard.pdf.
Published in Family Law Quarterly, Volume 56, Number 1, 2022. © 2022 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
