would be lost. To begin with according to the National Indian Child Welfare Association, ” The intent of congress under ICWA was to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.”( Indian Child Welfare Act, 1978). Therefore although the Indian Child Welfare Act (ICWA) seem to protect many Native American children there were some issues along with this federal law.
For instance, some of those issues were adoption rights options where the child would be placed and lastly the numerous parties that would be involved. As Walter Olson address in his article ” The Constitutional Flaws of the Indian Child Welfare Act” he further then discuss some of the issues that occur with the Act. Olson has stated that most of the arguments that surrounded a contemporary child custody case was based on the question of the extent to which the federal definition of an Indian “parent” under ICWA should track state definitions of “parent” which often recognize that biological and legal parenthood are two different things.
(Olson, 2013). In other words a huge debate within the Indian Child Welfare Act is the rights and the role of a adoptive parent to a Native American child. In fact, in the case of Mississippi Band of Choctaw Indians v. Holyfield in which also was called into question for a child’s adoption.(Olson, 2013) This case was about the status of two twin babies in which their parents were of a Native American heritage and were members of a tribe in Neshoba County, Mississippi. (Mississippi Band of Choctaw Indians v. Holyfield, 1989).
These two twin babies were adopted by a non-Native American family just as Lexi the babies were adopted by a family in Harrison County in Mississippi. The main concern issue on this case was figuring out the location of the children by figuring out the location of the children is the location were the babies were born whether they were born on Indian reservation or if they ever lived on Indian reservation. Shortly, after the adoption had been finalized the family that had taken the twin babies had gotten a notice from the home tribe to leave the adoption as it was because of the exclusive jurisdiction in the Indian Child Welfare Act.
The case on the twin babies was taken to a state trial court by the Native American tribe and their action on the process was denied. The reason why this case was denied by the court was for the fact that the twin babies had never lived on Indian reservation land and were also not born on the reservation land. Later on the tribe had appealed to the Mississippi Supreme Court in which confirm the trial court’s decision. For the time being that the tribe had appealed to the Mississippi Supreme Court, the court ended up granted certiorari to them.
(Mississippi Band of Choctaw Indians v. Holyfield, 1989). As Justin Brennan, ultimately has stated in his article that ” Congress could not have intended to enact a rule of domicile that would permit individual Indian parent to defeat the ICWA’s jurisdictional scheme simply by giving birth and placing the child for adoption off the reservation.” (FindLaw, 2014). Brennan identify and examined Congress intent with the tribe’s reservation. Brennan stated, in the article ” This appeal requires us to construe the provisions of the Indian Child Welfare Act that establish exclusive tribal jurisdiction over child custody proceedings involving Indian children domiciled on the tribe’s reservation.” (FindLaw, 2014).
In other words children that have been born in Indian reservation were considered a part of the exclusive jurisdiction of the