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Monday, November 25, 2013

Indian Children and Their Guardians ad Litem

Matthew's book

Fletcher & Fort: “Indian Children and Their Guardians ad Litem”


Kate Fort and I published a short paper for a Boston University Law Review mini-symposium on Adoptive Couple v. Baby Girl: “Indian Children and Their Guardians ad Litem.”

An excerpt:
One of the primary goals of the Indian Child Welfare Act (ICWA) is to limit the influence or bias of state workers in decisions placing American Indian children out of their home and community.1 While this focus usually concerns state social workers, the officials who most often seek removal of a child, or the courts, the body that issues the orders and opinions, guardians ad litem (GALs) receive less attention.2 Despite this lack of attention, GALs exert a similar level of influence as state social workers. In Adoptive Couple v. Baby Girl,3 the role of the GAL was unusual but critical – the GAL, while officially appointed by the court, was handpicked by the adoptive parents.4 The role of the GAL remains understudied in the ICWA literature, though GALs continue to exert enormous influence in the courts. Unfortunately, many GALs throughout the nation subvert the national policy embodied by the ICWA by advocating against the implementation of the statute in case after case.5
There are three other papers in the symposium:

Perspective I by Professor Barbara Ann Atwood is available here

Perspective II by Professor James G. Dwyer is available here, and

Perspective III by Professors Naomi Cahn and June Carbone is available here.

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Why tribes do not recommend the DNA swab

Rebecca Tallbear entitled: “DNA, Blood, and Racializing the Tribe”, bearing out what I only inferred:

Detailed discussion of the Bering Strait theory and other scientific theories about the population of the modern-day Americas is beyond the scope of this essay. However, it should be noted that Indian people have expressed suspicion that DNA analysis is a tool that scientists will use to support theories about the origins of tribal people that contradict tribal oral histories and origin stories. Perhaps more important,the alternative origin stories of scientists are seen as intending to weaken tribal land and other legal claims (and even diminish a history of colonialism?) that are supported in U.S. federal and tribal law. As genetic evidence has already been used to resolve land conflicts in Asian and Eastern European countries, this is not an unfounded fear.

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