A B C D E F 1 Title Author Year Citation Thesis Note/Comment Michelle L. Lehmann, Comment, The Indian "Congress [should] enact those sections of The Indian Child Welfare Act of 1978: Child Welfare Act of 1978: Does it Apply to the proposed 1987 amendments that clarify Does it Apply to the Adoption of an Michelle L. Lehmann 1989 Comment the Adoption of an Illegitimate Indian the applicability of the ICWA to illegitimate Illegitimate Indian Child? Child?, 38 Cath. U. L. Rev. 511 (1989) Indian children." 2

"Congress did intend state courts to apply a Stan Watts, Note, Voluntary Adoptions uniform federal definition of 'Domicile' in Voluntary Adoptions Under the Indian Under the Indian Child Welfare Act of 1978: determining jurisdiction over voluntary Child Welfare Act of 1978: Balancing Stan Watts 1989 Balancing the Interests of Children, ICWA adoptions[.]" "[C]ourts must recognize Note the Interests of Children, Families, and Families, and Tribes, 63 S. Cal. L. Rev. 213 and respect the interests of Indian children, Tribes (1989) their extended families, and their tribe in adoption decisions." 3

Wendy Lewis, Note, The Role of Domicile in The Role of Domicile in Adopting In determining jurisdiction in a child welfare Adopting Indian Children: Mississippi Band Indian Children: Mississippi Band of Wendy Lewis 1990 case, the courts should apply a cultural- Note of Choctaw Indians v. Holyfield, 1990 Utah Choctaw Indians v. Holyfield identity test on a case-by-case basis. L. Rev. 899 (1990) 4 Richard B. Taylor, Note, Curbing the Erosion "Because the ICWA's goal is so important, Curbing the Erosion of the Rights of of the Rights of Native Americans: Was the state courts should look not only to the Native Americans: Was the Supreme Richard B. Taylor 1990 Supreme Court Successful in Mississippi letter of the law in deciding whether or not Note Court Successful in Mississippi Band of Band of Choctaw Indians v. Holyfield?, 29 J. to apply the Act in a given case, but also to Choctaw Indians v. Holyfield? Fam. L. 171 (1990) the policy behind it." 5

Diane Allbaugh, Note, Tribal Jurisdiction Tribal Jurisdiction Over Indian "[N]either the individual nor the state Over Indian Children: Mississippi Band of Children: Mississippi Band of Choctaw Diane Allbaugh 1991 should beallowed to defeat the purpose of Note Choctaw Indians v. Holyfield, 16 Am. Indian Indians v. Holyfield ICWA." L. Rev. 533 (1991) 6

"Minnesota lawyers on behalf of their clients Peter W. Gorman & Michelle Therese Paquin, must demand compliance with the ICWA A Minnesota Lawyer's Guide to the Peter W. Gorman; A Minnesota Lawyer's Guide to the Indian 1992 and related Minnesota statutes; if they do Indian Child Welfare Act Michelle Therese Paquin Child Welfare Act, 10 Law & Ineq. 113 so, the ICWA's goal of native self- (1992) determination will be fulfilled." 7

Competent Indian cultural experts sensitive to the subleties of Indian was should be Lynn Klicker Uthe, Note, The Best Interests of The Best Interests of Indian Children in involved in Indian child welfare decisions, Lynn Klicker Uthe 1992 Indian Children in Minnesota, 17 Am. Indian Note Minnesota and "the safeguards incorporated into the L. Rev. 237 (1992) ICWA must be strictly enforced to secure the well-being and future existence of tribes."

8

Toni Hahn Davis, The Existing Indian Family The Existing Indian Family Exception to The courts should stop using and applying Toni Hahn Davis 1993 Exception to the Indian Child Welfare Act, the Indian Child Welfare Act the existing Indian family exception. 69 N.D. L. Rev. 465 (1993)

9

"Discussion among child welfare advocates, Catherine M. Brooks, The Indian Child The Indian Child Welfare Act in while rooted in the perceived interests and Welfare Act in Nebraska: Fifteen Years, A Nebraska: Fifteen Years, A Foundation Catherine M. Brooks 1993 needs of children, must look both to the Foundation for the Future, 27 Creighton L. for the Future short- and long-term results of placement Rev. 661 (1993) and adoption." 10

Ivy N. Voss, Notes & Comments, In the Best "[A] child's well-being must weigh heavily in In the Best Interest: The Adoption of Ivy N. Voss 1993 Interest: The Adoption of F.H., An Indian the balance against the interests of other Notes & Comments F.H., an Indian Child Child, 8 BYU J. Pub. L. 151 (1993) parties."

11

Brian D. Gallagher, The Indian Child Welfare The Indian Child Welfare Act of 1978: ICWA's "continuing vitality appears crucial Act of 1978: The Congressional Foray Into The Congressional Foray Into the Brian D. Gallagher 1994 to the survival of the Indian nations and the Adoption Process, 15 N. Ill. U.L. Rev. 81 Adotpion Process their way of life." (1994) 12 "ICWA is in the best interest of the Indian Debra Dumontier-Pierre, The Indian Child child, the tribal court system is the best The Indian Child Welfare Act of 1978: A Debra Dumontier-Pierre 1995 Welfare Act of 1978: A Montana Analysis, 56 forum to determine Indian child custody Montana Analysis Mont. L. Rev. 505 (1995) issues, and ICWA is a law that should be 13 followed, not ignored." A B C D E F

"[A] mandatory order of placements with Erik W. Aamot-Snapp, When Judicial When Judicial Flexibility Becomes strictly defined exceptions would best Flexibility Becomes Abuse of Discretion: Abuse of Discretion: Eliminating the effectuate Congress's goal of preserving Erik W. Aamot-Snapp 1995 Eliminating the "Good Cause" Exception in "Good Cause" Exception in Indian Native American communities by restricting Indian Child Welfare Act Adoptive Child Welfare Act Adoptive Placements state court discretion in child placement Placements, 79 Minn. L. Rev. 1167 (1995) proceedings." 14

"This article provides an overview of these basic ICWA requirements and judicial interpretations of these requirements. It Michael C. Snyder, An Overview of the Indian An Overview of the Indian Child also includes references to the Federal Michael C. Snyder 1995 Child Welfare Act, 7 St. Thomas L. Rev. 815 Welfare Act Guidelines for State Courts. These Guidelines (1995) do not have the binding legislative effect of federal regulations, but are helpful in interpreting the ICWA." 15

Denise L. Stiffarm, Note & Comment, The The Indian Child Welfare Act: Guiding Indian Child Welfare Act: Guiding the "Congress [should] codify the BIA Guidelines the Determination of Good Cause to Denise L. Stiffarm 1995 Determination of Good Cause to Depart to direct the 'good cause' determination in a Note & Comment Depart from the Statutory Placement from the Statutory Placement Preferences, manner consistent with the policy of ICWA." Preferences 70 Wash. L. Rev. 1151 (1995) 16

"Without some tailoring, ICWA is vulnerable to attack for impermissibly burdening the Joan Heifetz Hollinger, Children of the Tribe , due process and equal protection rights that Children of the Tribe Joan Heifetz Hollinger 1996 1 U.C. Davis J. Juv. L. & Pol'y 19 (1996) the court convincingly argued are guaranteed to all children under the Fifth and Fourteenth Amendments. " 17

Jeff Brown, Note, Rye v. Weasel: Applying "In cases such as Rye v. Weasel , the only way Rye v. Weasel: Applying the Indian the Indian Child Welfare Act of 1978 to to fulfill this country's commitment to Child Welfare Act of 1978 to Satisfy Jeff Brown 1996 Satisfy Conflicting Interests and Native Americans is through a strict Note Conflicting Interests and Congressional Congressional Intent, 34 U. Louisville J. Fam. application of the ICWA commensurate with Intent L. 935 (1996) Congressional intent." 18

Joan Heifetz Hollinger, Legislative Update on Legislative Update on ICWA The article briefly discusses H.R. 1448 and S. Joan Heifetz Hollinger 1996 ICWA Amendments, 1 U.C. Davis J. Juv. L. & Amendments 1962 from 1996. Pol'y 52 (1996)

19

Alana J. DeGarmo, Note and Comment, The There is "a clear need for legislative The Indian Child Welfare Act: Its Indian Child Welfare Act: Its Impact on mosdification of the Act or a final word from Impact on Unknowing Adoptive Alana J. DeGarmo 1996 Note & Comment Unknowing Adoptive Parents, 17 J. Juvenile the Supreme Court[ on the Act's Parents L. 32 (1996) applicability.]"

20

"The federal government has failed, Young Once, Indian Forever , 1 U.C. Davis J. however, to adequately implement and fund Young Once, Indian Forever No Author Juv. L. & Pol'y 16 (1996) ICWA, and state governments have ignored its mandate."

21 1996

The Existing Indian Family Exception: Is Charmel L. Cross, Comment, The Existing "[T]he line of cases refusing to adopt a it Appropriate to Use a Judicially Indian Family Exception: Is it Appropriate to judicially created exception to the ICWA Created Exception to Render the Charmel L. Cross 1997 Use a Judicially Created Exception to Render have interpreted the ICWA correctly in Comment Indian Child Welfare Act of 1978 the Indian Child Welfare Act of 1978 consideration of the Act's legislative history Applicable? Inapplicable?, 26 Cap. U. L. Rev. 847 (1997) and current legislative activity."

22

Wendy Therese Parnell, The Existing Indian "[T]he existing Indian family exception is a The Existing Indian Family Exception: Family Exception: Denying Tribal Rights judicially created exception to the ICWA Denying Tribal Rights Protected by the Wendy Therese Parnell 1997 Protected by the Indian Child Welfare Act, which subverts the tribal and family rights Indian Child Welfare Act 34 San Diego L. Rev. 381 (1997) the ICWA was designed to protect."

23 A B C D E F

Charmel L. Cross, Comment, The Existing "[E]ven if the ICWA is constitutional, because The Indian Child Welfare Act of 1978: Indian Family Exception: Is it Appropriate to it is being applied inconsistently, Violating Personal Rights for the Sake Christine D. Bakeis 1997 Use a Judicially Created Exception to Render Comment congressional or judicial direction is of the Tribe the Indian Child Welfare Act of 1978 needed." Inapplicable?, 26 Cap. U. L. Rev. 847 (1997) 24

Alissa M. Wilson, The Best Interests of The Best Interests of Children in the "[T]he In re S.S. holding will result in Children in the Cultural Context of the Cultural Context of the Indian Child Alissa M. Wilson 1997 confusion and inefficiency when future Indian Child Welfare Act in In Re S.S. and Welfare Act in In Re S.S. and D.S. ICWA issues arise in Illinois courts." D.S., 28 Loy. U. Chi. L.J. 839 (1997)

25

Jennifer Nutt Carleton, The Indian Child "[A]ttempts [by Congress] to codify the 'best The Indian Child Welfare Act: A Study Welfare Act: A Study in the Codification of interests of the child' standard [in ICWA] to in the Codification of the Ethnic Best Jennifer Nutt Carleton 1997 the Ethnic Best Interests of the Child, 81 include the ethnic heritage of a child face an Interests of the Child Marq. L. Rev. 21 (1997) uphill battle."

26

B. J. Jones, The Indian Child Welfare Act: In The Indian Child Welfare Act: In Search "[T]here is a compelling need for federal Search of a Federal Forum to Vindicate the of a Federal Forum to Vindicate the court supervision of state court decisions to B. J. Jones 1997 Rights of Indian Tribes and Children Against Rights of Indian Tribes and Children both promote uniformity and effectuate the the Vagaries of State Courts, 73 N.D. L. Rev. Against the Vagaries of State Courts design of the Act." 395 (1997) 27

"If the ICWA fails to protect Indian children, Sloan Philips, Note, The Indian Child Welfare then tribal leaders and tribal court officials, The Indian Child Welfare Act in the Sloan Philips 1997 Act in the Face of Extinction, 21 Am. Indian who understand the unique characteristics Note Face of Extinction L. Rev. 351 (1997) of Indian culture, should be the people to suggest amendments to the Act."

28

Jennifer L. Walters, In re Elliott: Michigan's In re Elliott: Michigan's Interpretation "[T]o further the goals of the ICWA and to Interpretation and Rejection of the Existing and Rejection of the Existing Indian protect and preserve Indian heritage and Jennifer L. Walters 1997 Indian Family Exception to the Indian Child Family Exception to the Indian Child culture, all courts should reject [the existing Welfare Act, 14 T.M. Cooley L. Rev. 633 Welfare Act Indian family] exception." (1997) 29

Christine Metteer, The Existing Indian The Existing Indian Family Exception: Family Exception: An Impediment to the "[T]he judicial creation of the existing Indian An Impediment to the Trust Trust Responsibility to Preserve Tribal family exception has thwarted congressional Responsibility to Preserve Tribal Christine Metteer 1997 Existence and Culture as Manifested in the intent to fulfill its trust obligation towards Existence and Culture as Manifested in Indian Child Welfare Act, 30 Loy. L.A. L. Rev. the tribes." the Indian Child Welfare Act 647 (1997) 30

Peter K. Wahl, Little Power to Help Brenda? "[G]reat improvements have been made in Little Power to Help Brenda? A Defense A Defense of the Indian Child Welfare Act solving problems of Indian chld custody. of the Indian Child Welfare Act and its Peter K. Wahl 2000 and its Continued Implementation in Continued adherence to ICWA will further Continued Implementation in Minnesota, 26 Wm. Mitchell L. Rev. 811 the goals for which it was originally Minnesota (2000) enacted." 31

Christine M. Metteer, A Law Unto Itself: The A Law Unto Itself: The Indian Child Indian Child Welfare Act as Inapplicable "[T]he ICWA is inapplicable and Welfare Act as Inapplicable and Christine M. Metteer 2000 and Inappropriate to the Transracial/Race- inappropriate to the discussion [on race- Inappropriate to the Transracial/Race- Matching Adoption Controversy, 38 based adoprion.]" Matching Adoption Controversy Brandeis L.J. 47 (2000) 32

"[A]lthough the ICWA purports to allow The Indian Child Welfare Act and Andrea V.W. Wan, The Indian Child Welfare tribes to have increased control over Inupiat Customs: A Case Study of Act and Inupiat Customs: A Case Study of Andrea V.W. Wan 2001 children, in practice tribes often do not have Conflicting Values, With Suggestions Conflicting Values, With Suggestions for the skills or resources needed to reassume for Change Change, 27 Alaska L. Rev. 43 (2001) such control successfully."

33 A B C D E F

Richard B. Maltby, Note, The Indian Child "[C]ourts and legislatures must become The Indian Child Welfare Act of 1978 Welfare Act of 1978 and the Missed more assertive in developing explicit laws and the Missed Opportunity to Apply Richard B. Maltby 2002 Opportunity to Apply the Act in pertaining to ICWA guardianships to avoid Note the Act in Guardianships Guardianships, 46 St. Louis U. L.J. 213 frustrating the principles that drove (2002) Congress to pass the legislation." 34

"A construction of the Act that permits a multiplicity of voices to be heard a the Flashpoints Under the Indian Child Barbara Ann Atwood, Flashpoints Under the placement stage of Indian child custody Welfare Act: Toward a New Indian Child Welfare Act: Toward a New proceedings in state court . . . will better Barbara A. Atwood 2002 Understanding of State Court Understanding of State Court Resistance, 51 serve the interests of children while Resistance Emory L.J. 587 (2002) safeguarding the federal policy of promoting tribal self-determination and tribal survival." 35

Speedy Termination of Alaska Native Sheri L. Hazeltine, Speedy Termination of Parental Rights: The 1998 Changes to Alaska Native Parental Rights: The 1998 Alaska's "CINA's laws should be amended to Alaska's Child in Need of Aid Statutes Changes to Alaska's Child in Need of Aid incorporate the special requirements under Sheri L. Hazeltine 2002 and Their Inherent Conflict With the Statutes and Their Inherent Conflict With the ICWA for Indian child welfare Mandates of the Federal Indian Child the Mandates of the Federal Indian Child proceedings." Welfare Act Welfare Act, 19 Alaska L. Rev. 57 (2002) 36

Amanda B. Westphal, An Argument in Favor An Article in Favor of Abrogating the "[T]ribal courts with judges who are versed of Abrogating the Use of the Best Interests of Use of the Best Interests of the Child in the Native American culture and the the Child Standard to Circumvent the Standard to Circumvent the Amanda B. Westphal 2003 unique needs of Indian children, are the Jurisdictional Provisions of the Indian Child Jurisdictional Provisions of the Indian proper forum for making decisions in cases Welfare Act in South Dakota, 49 S.D. L. Rev. Child Welfare Act in South Dakota that involve Indian children." 107 (2003) 37

Mark Andrews, Comment, Terminating "[T]he [Alaska Supreme C]ourt's reasoning [in Terminating Active Efforts: The Alaska Active Efforts: The Alaska Supreme Court J.S. v. State] was unfounded given the Mark Andrews 2003 Comment Supreme Court Misfires in J.S. v. State Misfires in J.S. v. State, 20 Alaska L. Rev. 305 guarantees of the Indian Child Welfare Act (2003) and the current state of federal law."

38

"Since its enactment, the ICWA clearly has Thomas R. Myers & Jonathan J. Siebers, The had positive results, but mistakes continue Thomas R. Myers; The Indian Child Welfare Act 2004 Indian Child Welfare Act, 83 Mich. Bar J. 19 to be made in interpreation and application Jonathan J. Siebers (2004) of the ICWA, mistakes that may be easily corrected."

39

"As children's advocates, we may better serve children as a class if we ground our Annette Ruth Appell, Uneasy Tensions Uneasy Tensions Between Children's agendas in larger theoretical frameworks Annette Ruth Appell 2004 Between Children's Rights and Civil Rights, 5 Rights and Civil Rights regarding justice and the potential Nev. L.J. 141 (2004) regressive implications of enlarging chilren's dependency rights."

40

"[T]he Iowa Indian Child Welfare Act is a Applying Twenty-Five Years of Kirk Albertson, Applying Twenty-Five Years landmark piece of legislation that provides Experience: The Iowa Indian Child Kirk Albertson 2005 of Experience: The Iowa Indian Child Welfare greater protection to Indian tribes and Welfare Act Act , 29 Am. Indian L. Rev. 193 (2004-2005) families."

41

In Re M.J.J, J.P.L., & J.P.G.: The Paul David Kouri, Note, In Re M.J.J., J.P.L., & "Oklahoma . . . [should] mandat[e] expert "Qualified Expert Witness" J.P.G.: The "Qualified Ecpert Witness" testimony concernign whether cultural bias Paul David Kouri 2005 Note Requirements of the Indian Child Requirements of the Indian Child Welfare is implicated in every case in which ICWA Welfare Act Act , 29 Am. Ind. L. Rev. 403 (2005) applies."

42 A B C D E F

"The departure from the original purposes of Sarah Martinez, Comment, Turning Back the ICWA for promoting tribal self- Turning Back the Clock: The Loss of Clock: The Loss of Jurisdiction Over determination and sovereignty toward Tribal Jurisdiction Over Involuntary Sarah Martinez 2006 Involuntary Juvenile Dependency Comment interpretations favoring broader state Juvenile Dependency Proceedings Proceedings, 10 U.C. Davis J. Juv. L. & Pol'y jurisdiction downplays ICWA's significance 541 (2006) to Native American communities." 43

Cheyanna L. Jaffke, The "Existing Indian The "Existing Indian Family Exception Family " Exception to the Indian Child to the Indian Child Welfare Act: The "[T]he 'existing Indian family' exception is Cheyanna L. Jaffke 2006 Welfare Act: The States' Attempt to States' Attempt to Slaughter Tribal wong for five reaons." Slaughter Tribal Interests in Indian Children, Interests in Indian Children 66 La. L. Rev. 733 (2006) 44

"The ICWA goes a long way in ensuring that Christine Basic, An Overview of the Indian An Overview of the Indian Child an Indian child will know its culture and, as Christine Basic 2007 Child Welfare Act of 1978, 16 J. Contemp. Welfare Act of 1978 a result, its culture will have a better chance Legal Issues 345 (2007) of continued survival."

45

"[O]ther States should follow California's example and institue legislation eliminating the existing Indian family exception for The Terminator Terminates Daniel Albani Adlong, The Terminator three reasons: first, the existing Indian Terminators: Governot Terminates Terminators: Governor family exception violates main principles of Schwarzenegger's Signature, SB 678, Schwarzenegger's Signature, SB 678, and the ICWA; second, Supreme Court precedent and How California Attempts to Daniel Albanil Adlong 2007 How California Attempts to Abolish the strongly favors eliminating the existing Abolish the Existing Indian Family Existing Indian Family Exception and Why Indian family exception; third, the Nation or Exception and Why Other States Other States Should Follow, 7 Appalachian states should follow California and pass Should Follow J.L. 109 (2007) legislation eliminating the existing Indian family exception to promote uniformity amongst the states."

46

Borders Beyond Borders -- Protecting Patrice H. Kunesh, Borders Beyond Borders -- "[T]here should be no fixed geographic Essential Tribal Relations Off Protecting Essential Tribal Relations Off bundary delimiting tribal jurisdiction over Patrice H. Kunesh 2007 Reservation Under the Indian Child Reservation Under the Indian Child Welfare Indian children who are wards of the tribal Welfare Act Act , 42 New Eng. L. Rev, 15 (2007) court."

47

"[B]oth state and tribal policymakers must Patrice H. Kunesh, A Call for an Assessment engage in an earnest dialogue about factors A Call for an Assessment of the Welfare Patrice H. Kunesh 2007 of the Welfare of Indian Children in South implicating the political, economic, and of Indian Children in South Dakota Dakota, 52 S.D. L. Rev. 247 (2007) social well-being of Indian people in South Dakota."

48

"While ICWA's language and pre-enactment hearings suggest that preservation of tribal sovereignty benefits not only tribes but also Solangel Maldonado, Race, Culture, and Race, Culture, and Adoption: Lessons Indian parents and Indian children who may Adoption: Lessons from Misssippi Band of from Mississippi Band of Choctaw Solangel Maldonado 2008 experience psychological harm if placed in Choctaw Indians v. Holyfield, 17 Colum. J. Indians v. Holyfield non-Indian homes, Holyfield demonstrates Gender & L. 1 (2008) that children's best interests and parents' interests are sometimes seperate from and in tension with tribal interests."

49

"Through a de novo standard of review, Emily Bucher, Note, Civil Procedure: Civil Procedure: Narrowed Lens, coupled with a lens of interpretive Narrowed Lens, Clearer Focus: Considering Clearer Focus: Considering the Use of narrowness, courts can best safeguard the Use of De Novo Review in Indian Child De Novo Review in Indian Child Emily Bucher 2008 against future discord between state law and Note Welfare Proceedings-in re Welfare of Child Welfare Proceedings - In re Welfare of native tribes in Indian child welfare of T.T.B. , 34 Wm. Mitchell L. Rev. 1429 Child of T.T.B. proceedings by reducing the opportunities (2008) available for majoritarian influence." 50 A B C D E F

"[A]n aggravated circumstances exception C. Eric Davis, Note, In Defense of the Indian would do violence to the ICWA and its In Defense of the Indian Child Welfare Child Welfare Act in Aggravated C. Eric Davis 2008 family preservation goals, and such an Note Act in Aggravated Circumstances Circumstances, 13 Mich. J. Race & L. 433 exception is unnecessary to protect Native (2008) children from dangerous parents." 51

Ronald M. Walters, Comment, Goodbye to "[C]hild welfare workers must be educated Goodbye to Good Bird: Considering Good Bird: Considering the Use of Contact to understand that ICWA is a narrowly- the Use of Contact Agreements to Ronald M. Walters 2008 Agreements to Settle Contested Adoptions tailored law that makes a thoughtful, well- Comment Settle Contested Adoptions Arising Arising Under the Indian Child Welfare Act, reasoned determination of what is in the Under the Indian Child Welfare Act 6 U. St. Thomas L.J. 270 (2008) best interests of Indian children."

52

"Through such time-honored arrangements as guardianships, open adoptions, and Barbara Ann Atwood, Achieving Permanency Achieving Permanency for American customary or traditional adoptions, state for American Indian and Alaska Native Indian and Alaska Native Children: Barbara Ann Atwood 2008 courts may be able to satisfy the Indian Children: Lessons from Tribal Traditions, 37 Lessons from Tribal Traditions child's need for familial security in a Cap. U. L. Rev. 239 (2008) placement that comports with the child's tribal heritage." 53

"[G]iving Indian youths a greater voice in Barbary Atwood, The Voice of the Indian disputes about their placments for the The Voice of the Indian Child: Child: Strengthening the Indian Child future would enrich the decision-makers' Strengthening the Indian Child Welfare Barbara Atwood 2008 Welfare Act Through Children's understanding of the competing interests Act Through Children's Participation Participation, 50 Ariz. L. Rev. 127 (2008) involved and produce greater respect among participants for the decisions themselves." 54

Suzianne D. Painter-Thorne, One Step One Step Forward, Two Giant Steps Forward, Two Giant Steps Back: How the Congress must act to halt the states' Back: How the "Existing Indian Family" "Existing Indian Family" Exception application of the Existing Indian Family Exception (Re)Imposes Anglo American Suzianne D. Painter- 2009 (Re)Imposes Anglo American Legal Values on Exception so that ICWA can be effective in Legal Values on American Indian Tribes Thorne American Indian Tribes to the Detriment of allowing tribes to control their cultural to the Detriment of Cultural Cultural Autonomy, 33 Am. Indian L. Rev. futures. Autonomy 329 (2008-2009)

55

Amanda Tucker, The Indian Child Welfare The Indian Child Welfare Act's Act's Unconstitutional Impact on the ICWA must be eradicated, because it "is Unconstitutional Impact on the Amanda Tucker 2009 Welfare of the Indian Child, 9 Whittier J. dated, it is unconstitutional, and it is racist." Welfare of the Indian Child Child & Fam. Advoc. 87 (2009)

56

Steve Sanders, Where Sovereigns and Where Sovereigns and Cultures Cultures Collide: Balancing Federalism, "ICWA should override a state's anti-gay Collide: Balancing Federalism, Tribal Tribal Self-Determination, and Individual adoption policy if such a law would present Self-Determination, and Individual Steve Sanders 2010 Rights in the Adoption of Indian Children by a roadblock to the placement of an Indian Rights in the Adoption of Indian Gays and Lesbians, 25 Wis. J.L. Gender & child in an Indian home." Children by Gays and Lesbians Soc'y 327 (2010) 57

"[T]he Indian children who are the subjects Jill E. Tomkins, Finding the Indian Child Finding the Indian Child Welfare Act in of private proceedings are entitled to the Welfare Act in Unexpected Places: Unexected Places: Applicability in Jill E. Tomkins 2010 same familial andcultural protections of Applicability in Private, Non-Parent Custody Private, Non-Parent Custody Actions ICWA as those children in abuse or neglect Actions, 81 U. Colo. L. Rev. 1119 (2010) proceedings and guardianships."

58

Dan Lewerenz & Padraic McCoy, The End of "[A]lthough the 'existing Indian family' The End of "Existing Indian Family" "Existing Indian Family" Jurisprudence: doctrine is not completely dead, its Jurisprudence: Holyfield at 20, In the Dan Lewerenz & Padraic McCoy 2010 Holyfield at 20, In the Matter of A.J.S., and rationale has been persuasively shown to be Matter of A.J.S., and the Last Gasps of a the Last Gasps of a Dying Doctrine, 36 Wm. contrary to both the plain language and the Dying Doctrine Mitchell L. Rev. 684 (2010) inten of the ICWA."

59 A B C D E F

"In judicial procedures under 28 U.S.C. 1912(e) of the ICWA, a judge must adhere to the mandatory requirements and not order foster care placement unless there is clear Heather O'Connor, 2009 Survey of Rhode and convincing evidence, including the 2009 Survey of Rhode Island Law Heather O'Connor 2010 Island Law, 15 Roger Williams U. L. Rev. 361 testimony of qualified expert witnesses, to (2010) determine that the continued custody of the child with the parent is likely to result in serious emotional or physical damage to the child."

60

Heather Kendall-Miller, State of Alaska v. "Alaska Native tribes are entitled to all of the State of Alaska v. Native Village of Native Village of Tanana: Enhancing Tribal rights and privileges of Indian tribes under Tanana: Enhancing Tribal Power by Power by Affirming Concurrent Tribal ICWA, including procedural safeguards Affirming Concurrent Tribal Heather Kendall-Miller 2011 Jurisdiction to Initiate ICWA-Defined Child imposed on states and 1911(d) full faith and Jurisdiction to Initiate ICWA-Defined Custody Proceedings, Both Inside and credit with respect to ICWA-defined child Child Custody Proceedings, Both Outside of Indian Country, 28 Alaska L. Rev. custody orders to the same extent as other Inside and Outside of Indian Country 217 (2011) states' and foreign orders." 61

"[A] uniform definitiion and application of From Theory to Practice: Megan Scanlon, Comment, From Theory to 'active efforts' should exist in every Incorporating the "Active Efforts" Practice: Incorporating the "Active Efforts" Megan Scanlon 2011 jurisdiction. " "'Active efforts' require more Comment Requirement in Indian Child Welfare Requirement in Indian Child Welfare Act than 'reasonable efforts,' and these Act Proceedings Proceedings, 43 Ariz. St. L.J. 629 (2011) standards are different." 62

"[T]he welfare of Indian children binds together tribal and state judicial systems, Kathryn E. Fort, Waves of Education: Tribal- Waves of Education: Tribal-State Court regardless of either side's participation. State Court Cooperation and the Indian Cooperation and the Indian Child Kathryn E. Fort 2012 Federal intervention in this area under the Child Welfare Act, 47 Tulsa L. Rev. 529 Welfare Act auspices of the Indian Child Welfare Act (2012) virtually forces tribes and states to work together." 63

Ashley E. Brennan, Comment,Child Abuse is Child Abuse is Color Blind: Why the Color Blind: Why the Involuntary "[T]he involuntary termination of parental Involuntary Termination of Parental Termination of Parental Rights Provision of Ashley E. Brennan 2012 rights ("ITPR") provision of the Indian Child Comment Rights Provision of the Indian Child the Indian Child Welfare Act Should Be Welfare Act ("ICWA") should be reformed." Welfare Act Should Be Reformed Reformed, 89 U. Det. Mercy L. Rev. 257 (2012)

64

"[T]he future welfare of Indian children is in many ways the future of Indian tribes, and Thalia Gonzalez, Reclaiming the Promise of Reclaiming the Promise of the Indian recognition of protections for Indian status the Indian Child Welfare Act: A Study of Child Welfare Act: A Study of State offenders is critical to creating long-term Thalia Gonzalez 2012 State Incorporation and Adoption of Legal Incorporation and Adoption of Legal positive systematic change for Indian youth, Protections for Indian Status Offenders, 42 Protections for Indian Status Offenders parents, and tribes consistent with the N.M. L. Rev. 131 (2012) thirty-three-year-old commitment of ICWA to tribal identity, integrity, and rights."

65

"[W]hile the new statutory language in the Karen Gray Young, Do We Have it Right This [Washington Indian Child Welfare Act] Do We Have it Right This Time? An Time? An Analysis of the Accomplishments WICWA is somewhat helpful for statutory Analysis of the Accomplishments and Karen Gray Young 2013 and Shortcomings of Washington's Indian interpretation, in that it providessome Shortcomings of Washington's Indian Child Welfare Act, 11 Seattle J. for Soc. Just. definitional clarity, particularly in the 'best Child Welfare Act 1229 (2013) interests of the child,' many terms remain ambiguous." 66

"More than a mere inquiry into Indian Leading Cases, Indian Child Welfare Act - exceptionalism, [Adoptive Couple v. Baby Indian Child Welfare Act - Termination Termination of Parental Rights - Adoptive Girl] tests the contours of parental rights, of Parental Rghts - Adoptive Couple v. No Author Couple v. Baby Girl, 127 Harv. L. Rev. 368 asking whether natural parents or custodial Baby Girl (2013) families should most warrant judicial protection." 67 2013 A B C D E F

Philip McCarthy, Jr., Symposium, The The Oncoming Storm: State Indian Oncoming Storm: State Indian Child "State ICWA laws may not grant Indian Child Welfare Act Laws and the Clash of Philip McCarthy, Jr. 2013 Welfare Act Laws and the Clash of Tribal, tribes greater rights 'at the expense of the Tribal, Parental, and Child Rights Parental, and Child Rights, 15 J. L. & Fam. parents' or children's rights.'" Stud. 43 (2013)

68

Philip McCarthy, Jr., Symposium, The The Oncoming Storm: State Indian Oncoming Storm: State Indian Child State ICWA laws may not grant Indian tribes Child Welfare Act Laws and the Clash of Philip McCarthy, Jr. 2013 Welfare Act Laws and the Clash of Tribal, greater rights 'at the expense of the parents' Tribal, Parental, and Child Rights Parental, and Child Rights, 2013 Utah L. or children's rights.' Rev. 1027 (2013)

69

"[R]egardless of whatever might have Marcia Zug, Adoptive Couple v. Baby Girl: motivated the Court to take this appeal, Adoptive Couple v. Baby Girl: Two-and- Two-and-a-Half Ways to Destroy Indian Marcia Zug 2013 there is no good option but to affirm the Commentary a-Half Ways to Destroy Indian Law Law, 111 Mich. L. Rev. First Impressions 46 South Carolina Supreme Court's decision to (2013) return Veronica to her father."

70

The Supreme Court's decision in Adoptive Couple v. Baby Girl creates an apparent tension in federal Indian law. Reading Adopting "Biology Plus" in Federal Shreya A. Fadia, Note, Adopting "Biology Adoptive Couple as an appplocation of the Indian Law: Adoptive Couple v. Baby Plus" in Federal Indian Law: Adoptive Shreya A. Fadia 2014 Supreme Court's biology-plus standard Note Girl's Refashioning of ICWA's Couple v. Baby Girl's Refashioning of ICWA's provides an additional means of furthering Framework Framework, 114 Colum. L. Rev. 2007 (2014) tribal, familial, and individual interests while working within the existing framework of ICWA and federal Indian law.

71

"[T]he Supreme Court endorsed a limited application of the "existing Indian family" Shawn L. Murphy, The Supreme Court's The Supreme Court's Revitalization of exception in the recent ruling of Adoptive Revitalization of the Dying "Existing Indian the Dying "Existing Indian Family" Shawn L. Murphy 2014 Couple, signaling to lower courts that the Family" Exception, 46 McGeorge L. Rev. 629 Exception EIFE should apply in cases that implicate a (2014) violation of Indian children's equal protection rights." 72

"The Supreme Court, seeking to avoid the difficult and obvious equal protection issues Christopher Deluzio, Tribes and Race: The Tribes and Race: The Court's Missed implicated in Adoptive Couple, inexplicably Court's Missed Opportunity in Adoptive Opportnity in Adoptive Couple v. Baby Christopher Deluzio 2014 failed to acknowledge ICWA for what it was Couple v. Baby Girl, 34 Pace L. Rev. 509 Girl in this case: an inherently racial (2014) classification that should have been subject to and failed strict scrutiny." 73

"[T]here are currently no repercussions for Jane Burke, Note, The "Baby Veronica" Case: states that fail to follow the ICWA, and The "Baby Veronica" Case: Current Current Implementation Problems of the similar to this country's child support Implementation Problems of the Jane Burke 2014 Note Indian Child Welfare Act, 60 Wayne L. Rev. system, there should be a threat of losing Indian Chld Welfare Act 307 (2014) federal funding if ICWA is not properly implemented in the states." 74

Dustin C. Jones, Comment, Adoptive Couple Adoptive Couple v. Baby Girl: The "[T]he U.S. Supreme Court erred in holding v. Baby Girl: The Creation of Second-Class Creation of Second-Class Native that the ICWA does not apply when a Native Dustic C. Jones 2014 Native American Parents Under the Indian Comment American Parents Under the Indian American parent never had legal or physical Child Welfare Act of 1978, 32 Law & Ineq. Child Welfare Act of 1978 custody of his or her child." 421 (2014)

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Kate Shearer, Comment, Mutual "[T]he Texas DFPS must improve its Mutual Misunderstanding: How Better Misunderstanding: How Better knowledge of the ICWA requirements and Communication will Improve the Communication Will Improve the Kate Shearer 2014 work to facilitate better communication Comment Administration of the Indian Child Administration of the Indian Child Welfare between tribal leaders and CPS Welfare Act in Texas Act in Texas , 15 Tex. Tech. Admin. L.J. 423 caseworkers." (2014) 76 A B C D E F

Danielle J. Larson, Note, You're Breaking Up: You're Breaking Up: The Faulty The Faulty Connection Between "[I]n an effort to do right, the majority of Connection Between Congressional Congressional Intent and Supreme Court Supreme Court justices twisted ICWA to Intent and Supreme Court Danielle J. Larson 2014 Note Interpretation in Adoptive Couple v. Baby arrive at a conclusion the statute, if read Interpretation in Adoptive Couple v. Girl, 133 S. Ct. 2552 (2013), 93 Neb. L. Rev. plainly, does not support." Baby Girl, 133 S. Ct. 2552 (2013) 517 (2014)

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"[T]he Court's results-oriented holding Adoptive Couple v. Baby Girl: The Jessica Di Palma, Comment, Adoptive Couple unnecessarily complicates the Supreme Court's Distorted v. Baby Girl: The Supreme Court's Distorted Jessica Di Palma 2014 straightforward language of the ICWA, Comment Interpretation of the Indian Child Interpretation of the Indian Child Welfare which will result in many unintended Welfare Act of 1978 Act of 1978, 47 Loy. L.A. L. Rev. 523 (2014) consequences."

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The Real Impact of Adoptive Couple v. Marcia A. Zug, The Real Impact of Adoptive "[T]he Court's decision in Baby Girl did not Baby Girl: The Existing Indian Family Couple v. Baby Girl: The Existing Indian affirm the EIF doctrine, but that it did Doctrine is Not Affirmed, But the Marcia A. Zug 2014 Family Doctrine is Not Affirmed, But the significantly curtail the applicability of the Future of the ICWA's Placement Future of the ICWA's Placement Preferences placement preferences in many future ICWA Preference is Jeopardized is Jeopardized, 42 Cap. U. L. Rev. 327 (2014) cases."

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Adoptive Couple v. Baby Girl: From Allison E. Burke, Adoptive Couple v. Baby "After the Court's ruling, the legislature must Strict Construction to Serious Allison E. Burke 2014 Girl: From Strict Construction to Serious take action to amend the ICWA to ensure its Confusion Confusion, 43 Hofstra L. Rev. 139 (2014) consistent and logical application."

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"Until legislation is passed to clarify the language and purpose of the ICWA, states The Indian Child Welfare Act's Waning Kathleena Kruck, The Indian Child Welfare will continue to avoid its application. Power After Adoptive Couple v. Baby Kathleena Kruck 2015 Act's Waning Power After Adoptive Couple v. Adoptive Couple failed to provide concrete Girl Baby Girl, 109 Nw. U. L. Rev. 445 (2015) guidanc e for state courts regarding ICWA's application." 81

"[B]y portraying the father as an almost ideal A Response to Professor Berger's 'In the Barbara A. Atwood, A Response to Professor father, Professor Berger misses the Name of the Child: Race, Gender, and Berger's 'In the Name of the Child: Race, opportunity to make a deeper point about Barbara A. Atwood 2015 Economics in Adoptive Couple v. Baby Gender, and Economics in Adoptive Couple the toll of destructive policies on Native Girl' v. Baby Girl, 67 Fla. L. Rev. F. 1 (2015) families, the reality of intergenerational trauma, and the essential role of ICWA." 82

Bethany R. Berger, In the Name of the Child: Adoptive Couple v. Baby Girl "reflected In the Name of the Child: Race, Gender, Race, Gender, and Economics in Adoptive concerns founded in race, gender, and and Economics in Adoptive Couple v. Bethany R. Berger 2015 Couple v. Baby Girl, 67 Fla. L. Rev. 295 economics that have little to do with Baby Girl (2015) children's interests."

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"'[C]ontinued custody' should not be limited Jeffrey A. Parness & Amanda Beveroth, The to physical custody[, but] . . . should also The ICWA's Pre-Existing Custody ICWA's Pre-Existing Custody Requirement: A include efforts to meaningfully accept the Requirement: A Flexible Approach to Jeffrey A. Parness; 2015 Flexible Approach to Better Protect the role of parenthood so that unwed Indian Better Protect the Interests of Indian Amanda Beveroth Interests of Indian Fathers, Children, and fathers without physical custody are not Fathers, Children, and Tribes Tribes, 35 Child. Legal Rts. J. 25 (2015) automatically excluded from the ICWAs protections." 84

"Decisions such as In re Alexandria P. provide important insight into the direction Christina Cook, In the Courts: Interpreting of courts within states and across the In the Courts: Interpreting the ICWA in Christina Cook 2015 the ICWA in Light of Adoptive Couple, 35 country on the important issues Light of Adoptive Couple Child. Legal Rts. J. 87 (2015) surrounding the custody and adoption of Native American children in the United States today." 85 A B C D E F

"[C]ourts deciding whether to transfer a case Thompson v. Fairfax County Katerina Silcox, Note, Thompson v. Fairfax to tribal court under 1911(b) should apply Department of Family Services: County Department of Family Services: the immediate harm standard because it Katerina Silcox 2015 Note Determining the Best Interests of the Determining the Best Interests of the Indian best balances the competing interests of the Indian Child Child, 10 Liberty U. L. Rev. 141 (2015) child and the continuation of tribal culture." 86

"[T]he Baby Girl Court grants far too much Christina Lewis, Note, Born Native, Raised Born Native, Raised White: The Divide deference to the state court system, White: The Divide Between Federal and Between Federal and Tribal particularly to South Carolina in this case, to Christina Lewis 2015 Tribal Jurisdiction With Extra-Tribal Native Note Jurisdiction With Extra-Tribal Native handle a custody matter that should American Adoption, 7 Geo. J. L. & Mod. American Adoption explicitly and exclusively belong to the Critical Race Persp. 245 (2015) tribes."

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Berger's "article sounds the alarm for Indian tribes and families to realize that native A Response to Professor Berger's 'In the B.J. Jones, A Response to Professor Berger's families continue to be under constant Name of the Child: Race, Gender, and 'In the Name of the Child: Race, Gender, and B. J. Jones 2015 scrutiny in the state judicial systems and Economics in Adoptive Couple v. Baby Economics in Adoptive Couple v. Baby Girl', that the strong economic interests opposed Girl' 67 Fla. L. Rev. F. 17 (2015) to strict application of the ICWA remain as vigilant as they were in 1978." 88

Courtney Hodge, Note, Is the Indian Child "[A]dditional action, either by Congress or at Is the Indian Child Welfare Act Losing Welfare Act Losing Steam?: Narrowing Non- the state level, is needed to ensure that Steam?: Narrowing Non-Custodial Courtney Hodge 2016 Custodial Parental Rights After Adoptive future Native parents can use the Indian Note Parental Rights After Adoptive Couple Couple v. Baby Girl, 7 Colum. J. Race & L 191 Child Welfare Act to ensure their child v. Baby Girl (2016) remains connected to his or her heritage."

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Allison E. Davis, Note, Roadway to Reform: "While the new guidelines and rules are Roadway to Reform: Assessing the Assessing the 2015 Guidelines and New created with Native American children and 2015 Guidelines and New Federal Rule Allison E. Davis 2016 Federal Rule to the Indian Child Welfare families in mind, the processes within the Note to the Indian Child Welfare Act's Act's Application to State Courts, 22 Suffolk rules must be followed to achieve tangible Application to State Courts J. Trial & App. Advoc. 91 (2016) benefits and results."

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Caroline M. Turner, Note, Implementing and "[S]tates should proceed to incorporate Implementing and Defending the Defending the Indian Child Welfare Act recently issued federal guidelines and Indian Child Welfare Act Through Caroline M. Turner 2016 Note Through Revised State Requirements, 49 regulations into their enforceable state Revised State Requirements Colum. J.L. & Soc. Probs. 501 (2016) requirements."

91 "Placing so much interpretive weight on [the] . . .phrase ['continued custody'], Anietie Maureen-Ann Akpan, Case Comment: coupled with the Court's distorted reading Case Comment: Adoptive Couple v. Anietie Maureen-Ann 2016 Adoptive Couple v. Baby Girl, 133 S. Ct. of the term 'parent' within the meaning of Comment Baby Girl, 133 S. Ct. 2552 (2013) Akpan 2552 (2013), 6 Colum. J. Race & L. 1 (2016) the ICWA, is why the Court's opinion [in Adoptive Couple v. Baby Girl ] is fundamentally flawed." 92

"[T]he provisions of ICWA harm Indian children, deprive them of the protection of the 'best interests of the child' standard, Timothy Sandefur, Escaping the ICWA move therm beyond the reach of state Escaping the ICWA Penalty Box: In Penalty Box: In Defense of Equal Protection protective services, curtail their rights to Defense of Equal Protection for Indian Timothy Sandefur 2017 for Indian Children, 37 Child. Legal Rts. J. 1 due process and equal protection, Children (2017) subordinate their interests to those of tribalgovernments, and cripple efforts to rescue them from abuse and find them stable homes." 93

"Congress, the BIA, or the Supreme Court Kevin Heiner, Note, Are You My Father? Are You My Father? Adopting a Federal must introduce a federal definition of Adopting a Federal Standard for Standard for Acknowledging or 'acknowledged or established' to promote Kevin Heiner 2017 Acknowledging or Establishing Paternity in Note Establishing Paternity in State ICWA consistent results for nonmarital fathers in State Court ICWA Proceedings, 117 Colum. Proceedings ICWA proceedings in state courts across the L. Rev. 2151 (2017) nation."

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