In Defense of the Indian Child Welfare Act In Aggravated Circumstances

The Indian Child Welfare Act (ICWA) affords various protections to Indian families throughout child welfare proceedings. Among them is the duty imposed upon the state to provide rehabilitative services to families prior to the outplacement of an Indian child, or termination of parental rights. An analogous provision for non-Indians in the Adoption and Safe Families Act (ASFA) excuses rehabilitative services in aggravated circumstances of child abuse. The ICWA contains no such exception, and that absence has been controversial. In 2002, the Alaska Supreme Court applied ASFA\u27s aggravated circumstances exception to the ICWA, thereby excusing services when a father severely abused his three Native children. In 2005, the South Dakota Supreme Court addressed the same issue, but expressly refused to engraft such an exception into the ICWA. This Note defends South Dakota\u27s position on policy grounds. It chiefly argues that an aggravated circumstances exception would do violence to the ICWA and its family preservation goals, and further that such an exception is unnecessary to protect Native children from dangerous parents