40 Children’s Legal Rights Journal [Vol. 37: 1 2017]
disregard for those children’s emotional well-being.”214 David, a methamphetamine addict, had
molested Danielle’s son and daughter as well as his own youngest daughter, and had failed to
protect his three daughters from sexual molestation by Danielle’s sons.215 The court concluded
that all three girls had “experienced lifetimes of trauma.”216 Had the courts applied the best
interests standard as the overriding consideration from the outset—and had state officials not
been required to make “active efforts” to reunite Shayla, Shania, and Tanya with their abusive
father—much needless suffering could have been avoided.
Even more disturbing is the case of Declan Stewart, an Oklahoma Cherokee boy who was
beaten to death in 2007 at the age of five by his mother’s boyfriend.217 Declan had been
removed from his mother’s custody eighteen months earlier when he appeared with signs of
severe physical abuse, including a fractured skull and a bruised rectum.218 But when state social
services workers sought to terminate the mother’s rights, the Cherokee tribe objected, insisting
upon “reunification.”219 Five weeks after Declan was returned to his mother’s physical custody,
he died in unimaginable agony.220
Even in less extreme circumstances, ICWA’s “active efforts” provision inflicts
unnecessary psychological harm on children. In Department of Human Services v. J.M.,221 the
Oregon Court of Appeals affirmed a trial court’s decision to clear a child, referred to as L, for
214 Id. at 19.
215 Id. at 18.
217 Nolan Clay & Randy Ellis, U.S. Law Pushed Boy Home before He Died—Tribal Statute Advocates Reunifying
Split Families, NEWS OK (Oct. 4, 2007), http://newsok.com/article/3140271/1191472787. See also Alice
Collinsworth, Report Details Child’s Abuse, Death, EDMONDSUN.COM (Oct. 4, 2007),
218 Mark Flatten, Death on A Reservation 25 (Goldwater Institute, 2015), https://goldwater-