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Burden of Proof

In Brief

February 9, 2011, 1:00 am

A recent state Supreme Court opinion highlights the difference between the laws governing Native American children and non-Native children. 

The state’s highest court on Jan. 21 reversed the 11th Judicial District Court’s finding of neglect on the part of a Navajo mother in Gallup. The Children, Youth and Families Department took the woman’s daughter into custody after the mother was reported “leaving with the baby on foot and in the extreme heat.” The Supreme Court reversed that finding because the standards of the Indian Child Welfare Act weren’t met in district court.

Under ICWA, a Native American child can’t be removed from her parents unless “active efforts” were made to keep the family together and “serious emotional or physical damage” seems imminent. For a non-Native family, a court must only find that “reasonable efforts” were made.

To address the damage from old policies such as the 1950s and ’60s’ Indian Adoption Project, ICWA requires custody questions be interpreted “liberally,” granting custody to the parent if evidence of abuse or neglect is in doubt.


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