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Painter-Thorne on the Existing-Indian-Family Exception & the Indian Child Welfare Act

By Lawrence Solum

Suzianne D. Painter-Thorne (Mercer University School of Law) has posted One Step Forward, Two Giant Steps Back: How the ?Existing Indian Family? Exception (Re)Imposes Anglo American Legal Values on American Indian Tribes to the Detriment of Cultural Autonomy (American Indian Law Review, Vol. 33, p. 329, 2009) on SSRN. Here is the abstract:

This article describes the profound changes to American Indian kinship and social structures caused when European and Anglo American legal norms were imposed on American Indian tribes without respect for Indian culture or values. Although these sovereign nations were entitled to self-determination, they were for centuries subjected to laws crafted without their input or representation. This article takes the position that law should come from within a culture to ensure that it reflects that culture's values and permits it to flourish in its own way. When law is imposed by outsiders, it becomes a means of colonization, forcing one group to conform to another culture's expectations and beliefs. This process can be seen in the relationship of United States law to American Indian tribes-a relationship in which tribes were placed under the control of a legal system that all too often failed to incorporate or reflect tribal values.

Thirty years ago, Congress took one step forward to rectify this history. Recognizing the tribes' right to cultural autonomy, Congress permitted American Indians to bring their own cultural norms to the table and have them recognized in laws such as the Indian Child Welfare Act. But that progress has been short-lived. State courts have thwarted ICWA's full potential through the judicially created ?existing Indian family exception,? which denies ICWA application in defiance of the Act's plain language, Supreme Court precedent, and congressional intent. Under this exception, tribes are once again being subjected to laws that regulate and define Indian family and social life without benefit of the tribes' input. To remedy this, I propose that Congress must act to halt the states' grab, so that ICWA lives up to its promise to permit the tribes to control their own cultural futures.

Full post as published by Legal Theory Blog on February 03, 2010 (boomark / email).