Law | National

Anti-Indian Child Welfare Act attorney continues to question law

Friday, June 10, 2016

After losing in the court system, a non-Indian couple in California and their attorney have waged a public relations campaign against the Indian Child Welfare Act. Photo by Darren Wiebe / Twitter

An attorney based in Washington, D.C., remains intent on undermining the Indian Child Welfare Act.

Lori Alvino McGill, partner at Wilkinson Walsh + Eskovitz, has lost a series of decisions in a case involving a Choctaw Nation girl. But she continues to question whether Indian children should be treated differently under ICWA.

“If the good-cause exception is not satisfied in a case like this one — where a child has thrived in a home for more than four years after suffering from drug exposure, neglect, and instability for the first two years of her life — then I think that raises serious constitutional questions concerning the statute’s differential treatment of children based on their status as “Indian,'" McGill told the Associated Press ahead of a hearing before an appeals court in California on Friday.

The California matter isn't McGill's only cause -- she represented the National Council for Adoption and Building Arizona Families in a lawsuit that challenged the constitutionality of ICWA. The case was dismissed in December.

McGill previously represented the non-Indian biological mother in Adoptive Couple v. Baby Girl, a high-profile case that went to the U.S. Supreme Court. While the justices ruled against the biological Indian father, they did not question the constitutionality of ICWA either.

Congress passed ICWA in 1978 to slow the removal of Indian children from their families and their tribal communities. Numerous states have enacted similar legislation in order to prevent the breakup of Indian families.

Despite those efforts, compliance with the law remains spotty. The Bureau of Indian Affairs has finalized a new rule that aims to strengthen ICWA.

"Tribal children are still disproportionately more likely to be removed from their homes and communities than other children," Larry Roberts, the leader of the BIA, said on Wednesday. "Tribal families continue to be broken up by the removal of their children."

The rule is slated to become effective in December to give states more time to update their procedures. The BIA will also offer training and technical assistance to tribes and states.

Get the Story:
California foster parents continue fight for Indian girl (AP 6/10)
Judgment Day for little 'Indian' girl ripped from family (WND 6/8)

Earlier California Court of Appeal Decision:
In re Alexandria P., a Person Coming Under the Juvenile Court Law (August 15, 2014)

Bureau of Indian Affairs Final Indian Child Welfare Act Rule:
Final Rule: Indian Child Welfare Act (ICWA) Proceedings | Final Rule: Indian Child Welfare Act (ICWA) Frequently Asked Questions | Dear Tribal Leader Letter | Dear State Governor Letter

Federal Register Notices for Indian Child Welfare Act:
Regulations for State Courts and Agencies in Indian Child Custody Proceedings (March 30, 2015)
Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (February 25, 2015)