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25 U.S.C.A. § 1901

United States Code Annotated
Title 25.  Indians
Chapter 21. Indian Child Welfare (Refs & Annos)


§ 1901. Congressional findings


Recognizing the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people, the Congress finds--


(1) that clause 3, section 8, article I of the United States Constitution provides that "The Congress shall have Power * * * To regulate Commerce * * * with Indian tribes  [FN1]" and, through this and other constitutional authority, Congress has plenary power over Indian affairs;


(2) that Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources;


(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;


(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions;  and


(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.


CREDIT(S)


(Pub.L. 95-608, § 2, Nov. 8, 1978, 92 Stat. 3069.)


[FN1]  So in original.  Probably should be capitalized.


HISTORICAL AND STATUTORY NOTES


Revision Notes and Legislative Reports


1978 Acts. House Report No. 95-1386, see 1978 U.S. Code Cong. and Adm. News, p. 7530.


Short Title


1978 Acts. Section 1 of Pub.L. 95-608 provided:  "That this Act [which enacted this chapter] may be cited as the 'Indian Child Welfare Act of 1978'."


LAW REVIEW COMMENTARIES


Adoption law:  Congratulations!  for now--Current law, the Revised Uniform Adoption Act, and final adoptions.  49 Okla.L.Rev. 323 (1996).


Best interests of children in the cultural context of the Indian Child Welfare Act.  Alissa M. Wilson, 28 Loyola University Chicago L.J. 839 (1997).


Beyond jurisprudential midrash:  Toward a human solution to Title IV-D child support enforcement problems across Indian country borders.  Nancy Rank, 33 Ariz.L.Rev. 337 (1991).


Cultural diversity and family values.  Jo Ann Viola Salazar and Sandra L. Shwayder, 22 Colo.Law. 941 (1993).


Domesticating Federal Indian Law.  Philip P. Frickey, 81 Minn.L.Rev. 31  (1996).


Existing Indian family exception:  An impediment to the trust responsibility to preserve tribal existence and culture as manifested in the Indian Child Welfare Act.  Christine Metteer, 30 Loyola of Los Angeles L.R.647 (1997).


Fighting over Indian children:  The uses and abuses of jurisdictional ambiguity.  Barbara Ann Atwood, 36 UCLA L.Rev. 1051 (1989).


Geographically-based and membership-based views of Indian tribal sovereignty:  The Supreme Court's changing vision.  Allison M. Dussias, 55 U.Pitt.L.Rev. 1 (1993).


Indian Child Welfare Act of 1978:  Does it apply to the adoption of an illegitimate Indian child?  38 Cath.U.L.Rev. 511 (1989).


Indian Child Welfare Act:  Guiding the determination of good cause to depart from the statutory placement preferences.  70 Wash.L.Rev. 1151 (1995).


Protecting abused children:  A judge's perspective on public law deprived child proceedings and the impact of the Indian Child Welfare Acts.  Edward L. Thompson, 15 Am.Indian L.Rev. 1 (1990).


The Indian Child Welfare Act:  Federal Indian law in Michigan probate court proceedings.  Barry L. Levine, 65 Mich.B.J. 452 (1986).


The Indian Child Welfare Act of 1978:  A practitioner's perspective.  Jesse C. Trentadue and Myra A. DeMontigny, 62 N.D.L.Rev. 487 (1986).


Transcending frontiers:  Indian child welfare in the United States.  Patrice H. Kunesh, 16 B.C. Third World L.J. 17 (1996).


LIBRARY REFERENCES


American Digest System


Indians 6(2), 32(11).


Key Number System Topic No. 209.


RESEARCH REFERENCES


ALR Library


186 ALR, Fed. 71, Construction and Application of Federal Tribal Exhaustion Doctrine.


184 ALR, Fed. 107, Validity, Construction, and Application of Indian Major Crimes Act.


184 ALR, Fed. 139, Validity, Construction, and Operation of Archaeological Resources Protection Act of 1979, 16 U.S.C.A. §§ 470aa to 470mm.


49 ALR, Fed. 674, Availability of Federal Habeas Corpus Relief, Under 28 U.S.C.A. §§ 2241 and 2254, in Child Custody Cases.


2003 ALR 5th 3, Construction and Application by State Courts of the Federal Adoption and Safe Families Act and Its Implementing State Statutes.


103 ALR 5th 255, Restricting Access to Judicial Records of Concluded Adoption Proceedings.


2002 ALR 5th 15, Determination that Child is Neglected or Dependent, or that Parental Rights Should be Terminated, on Basis that Parent Has Failed to Provide for Child's Education.


100 ALR 5th 1, Construction and Operation of Uniform Child Custody Jurisdiction and Enforcement Act.


89 ALR 5th 195, Construction and Application of Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. §§ 1901 et seq.) Upon Child Custody Determinations.


82 ALR 5th 389, Appealability of Interlocutory or Pendente Lite Order for Temporary Child Custody.


80 ALR 5th 1, Child Custody and Visitation Rights Arising from Same-Sex Relationship.


80 ALR 5th 117, Emergency Jurisdiction of Court Under §§ 3(A)(3)(ii) and 14(A) of Uniform Child Custody Jurisdiction Act and Parental Kidnapping Prevention Act, 28 U.S.C.A. §§ 1738a(C)(2)(C)(ii) and 1738A(F), to Protect Interests of Child.


72 ALR 5th 249, Home State Jurisdiction of Court to Modify Foreign Child Custody Decree Under §§ 3(A)(1) and 14(A)(2) of Uniform Child Custody Jurisdiction Act (UCCJA) and Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. §§ 1738a(C).


61 ALR 5th 151, Rights of Unwed Father to Obstruct Adoption of His Child by Withholding Consent.


53 ALR 5th 375, Mental Health of Contesting Parent as Factor in Award of Child Custody.


40 ALR 5th 227, Recognition and Enforcement of Out-Of-State Custody Decree Under § 13 of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A(a).


18 ALR 5th 892, Attorney Malpractice in Connection With Services Related to Adoption of Child.


20 ALR 5th 534, Parent's Use of Drugs as Factor in Award of Custody of Children, Visitation Rights, or Termination of Parental Rights.


5 ALR 5th 863, Authority of Court, Upon Entering Default Judgment, to Make Orders for Child Custody or Support Which Were Not Specifically Requested in Pleadings of Prevailing Party.


86 ALR 4th 211, Child Custody and Visitation Rights of Person Infected With AIDS.


34 ALR 4th 167, Race as Factor in Adoption Proceedings.


79 ALR 3rd 417, Parent's Involuntary Confinement, or Failure to Care for Child as Result Thereof, as Evincing Neglect, Unfitness, or the Like in Dependency or Divestiture Proceeding.


74 ALR 3rd 421, Comment Note.--Right of Natural Parent to Withdraw Valid Consent to Adoption of Child.


51 ALR 2nd 497, Necessity of Securing Consent of Parents of Illegitimate Child to Its Adoption.


Encyclopedias


2 Am. Jur. Proof of Facts 2d 365, Child Abuse-The Battered Child Syndrome.


2 Am. Jur. 2d Adoption § 27, Generally.


2 Am. Jur. 2d Adoption § 129, Intervention.


2 Am. Jur. 2d Adoption § 145, Race; Cultural Background.


Am. Jur. 2d Indians § 145, Generally; Tribe's Jurisdiction.


Am. Jur. 2d Indians § 146, Applicability of Indian Child Welfare Act.


Am. Jur. 2d Indians § 147, Full Faith and Credit.


Am. Jur. 2d Indians § 148, Agreements With State as to Care and Custody.


Treatises and Practice Aids


14 Causes of Action 817, Cause of Action to Withdraw or Revoke Parental Consent to Adoption.


16 Causes of Action 219, Cause of Action for Adoption Without Consent of Parent on Ground of Abandonment.


Federal Procedure, Lawyers Edition § 46:481, Assumption of Exclusive Jurisdiction by Passamaquoddy Tribe or Penobscot Nation.


Federal Procedure, Lawyers Edition § 46:506, Decision Made or Action Taken.


Wright & Miller: Federal Prac. & Proc. § 4516, Filling the Interstices Within a Pervasive Federal Framework.


NOTES OF DECISIONS


Constitutionality 1

Duty to educate 3

Mandatory nature of chapter 2

  

1. Constitutionality


This chapter does not deny equal protection to non-Indians.  Application of Angus, Or.App.1982, 655 P.2d 208, 60 Or.App. 546, review denied 660 P.2d 683, 294 Or. 569, certiorari denied 104 S.Ct. 107, 464 U.S. 830, 78 L.Ed.2d 109.  Constitutional Law  225.1;  Indians  6.3(3)


2. Mandatory nature of chapter


This chapter must be complied with in Indian child custody proceedings.   Matter of K.A.B.E., S.D.1982, 325 N.W.2d 840.  Indians  6.6(1)


3. Duty to educate


United States had obligation to educate Navajo secondary-school children who resided on remote reservation, independent of any such obligation which remained under 1868 treaties, and irrespective of whether its responsibility for Indian education was based on legal obligation arising out of trust relationship with Indian peoples or moral obligation it had voluntarily assumed, so long as federal statutes and regulations recognizing federal obligation for Indian education remained in force.  Meyers By and Through Meyers v. Board of Educ. of San Juan School Dist., D.Utah 1995, 905 F.Supp. 1544.  Indians  8


25 U.S.C.A. § 1901, 25 USCA § 1901


Approved 07-28-05


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