For decades, the Indian Child Welfare Act (ICWA) has been considered the “gold standard” in Indigenous child protection. As a result, Indigenous advocates around the world have sought the passage of similar legislation. However, it is far from clear that the benefits of the ICWA are easily exported. The ICWA is based on a recognition of tribal sovereignty. Unfortunately, many of the countries that could benefit from ICWA-type protections do not recognize the sovereignty of their Indigenous populations.
This Article explores how the ICWA would have to be adapted to work in such countries and whether the needed changes would reduce, or possibly even eliminate, the Act’s benefits. Ultimately, this Article concludes that, in the absence of recognized sovereignty, the ICWA would need significant modifications, but that these modifications would not negate the overall benefit of such legislation. In fact, the Article argues that some of these changes may provide surprising advantages.
Marcia Zug, ICWA International: The Benefits and Dangers of Enacting ICWA-Type Legislation in Non-U.S. Jurisdictions, 97 Denv. L. Rev. 205 (2019).