Culture and Law: Preliminary Findings in a Review of 100+ Tribal Welfare Codes


Jäger, Mary Beth, Rachel Rose Starks, Adrian T. Smith, and Miriam Jorgensen. 2015. "Culture and Law: Preliminary Findings in a Review of 100+ Tribal Welfare Codes." The Judges' Page Newsletter, Summer.

Before European settlement, U.S.-based tribes cared for children and supported families through informal child welfare practices. These practices—which were deeply embedded in the fabric of families, clans, and communities—protected children and ensured each tribe’s future. Post colonization, assimilative federal Indian policies replaced traditional tribal child welfare practices. These policies’ legacy of harm continues to be a central challenge for tribal child welfare systems today. In response, and in accordance with federal trust responsibility, Congress passed the Indian Child Welfare Act of 1978 (ICWA). Through ICWA, Congress recognizes tribe’s long-standing authority to regulate and care for member children. Because ICWA “assumes that a tribal code is the governance mechanism by which a tribe establishes and implements its jurisdiction over all aspects of child well-being,” the Act also supports tribes’ reclamation of self-determination over child welfare through lawmaking.

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