Indian Child Welfare Act

By Attorney Gregg Herman
September 9, 2015
[I’m a bit behind in blog postings, but I thought this one was worth the wait] A recent column by George Will in the Washington Post discusses the effect of the Indian Child Welfare Act.  Will notes:

The ICWA was passed to prevent a real abuse, the taking of Indian children from their homes without justifiable cause. But by protecting tribal sovereignty without stipulating the primary importance of protecting the best interests of the children, the rights of the tribes have essentially erased those of the children and the parents who wish to adopt them. 

Will goes on to give examples of cases where child were substantially harmed by returning them to Indian parents rather than allowing them to be adopted by non-Indian families.  

There is always tension in the law between protecting different rights.  Here, the tension is between tribes wishing to preserve their heritage and the best interests of children.   The problem with the law is its inflexibility.  Whenever there is an issue regarding rights of children, courts always need to have the ability to override everything else.

We see this conflict in areas other than Indian rights.  For example, many states, including Wisconsin, passed statutes protecting custodial rights of parents while they are deployed in the armed services.  Again, the intent is a good one – we should respect those who serve our country and minimize their sacrifices.  Yet once again, the rights of children need to be considered and override other concerns when they are in conflict.  

Another example are laws protecting the rights of parents in TPR proceedings.  There are tragic stories of children who are taken from loving caring foster parents and returned to their biological parents who had drug, mental health or other issues and then were either neglected or died.  Once again, while the law needs to be aware of the right of parents to raise their children, the trump card should be to protect children, not the rights of any adults.


Attorney Gregg Herman is a founding partner of Loeb & Herman, LLC in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.