Representing Parents in Representing Parents in ICWA Proceedings: ICWA Proceedings:

Successes and ChallengesSuccesses and Challenges

Overview Overview

This training will focus on the ICWA and families This training will focus on the ICWA and families who the ICWA impacts. who the ICWA impacts.

The ICWA is intended to protect the long term best The ICWA is intended to protect the long term best interests of Indian children, by maintaining the interests of Indian children, by maintaining the integrity of the Tribal family, the extended family and integrity of the Tribal family, the extended family and the child’s Tribal relationship.the child’s Tribal relationship.

The best interests of Indian children are inherently The best interests of Indian children are inherently tied to the concept of belonging.tied to the concept of belonging.

TextfamilyTribe

Extended family

The ICWA

Indian child

The Indian Child Welfare Act

Cultural and Historical Context

TRIBES HAVE ALWAYS HAD CONFIDENCEREGARDING THEIR CHILD REARING TRADITIONS

Schools initially operated by U.S. War Department

Children often did not return home for several years. Some report not recognizing their parents they had been gone so long.

High mortality rate in schools-some reported 50%

Education was seen as “civilizing” children.

In truth children were taught to be domestic staff and farmers.

Children were forbidden from speaking their native languages, corporal punishment

was widely used.

Boarding School Era 1800 – 1950’s

BOARDING SCHOOL ERA REVERBERATES

Europeans sought to Christianize and civilize Indian people. Boarding schools removed Indian children from their families

without cause. Indian children were prohibited from speaking their first

language, wearing their traditional clothing and practicing their own religion

The goal was to “Kill the Indian in him and save the man”. This was official federal policy as often espoused by Captain Richard Pratt who ran the first Indian boarding school at Carlisle Pennsylvania in 1879.

The goal of eradicating Indian culture was not successful but a lot of damage was done.

Congress explicitly found that part of the

trust responsibility of the United States is: To protect the best interests of Indian children and to

promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and placement of such children in foster homes . . which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

Codified at 25 USC Section 1902.

TODAY MANY TRIBAL MEMBERS LACK INFORMATION ABOUT THEIR OWN HISTORY AND TRADITIONS

WE ARE REBUILDING INDIAN NATIONS

Healing has to take place among our people, causes of social problems, self-destruction, violence, anger and poverty are rooted in historical trauma, the holocaust of history. The white people and many Indian people don’t get it, that dealing with loss of land, children taken away, families broken, loss of culture, tradition and language, constant oppression and discrimination are the historical pain and anger carried from one generation to the next.

HISTORICAL TRAUMA:CHAIRWOMAN ERMA VIZENOR

White Earth Tribal Nation

Bias & working with Indian Bias & working with Indian FamiliesFamilies

Implicit BiasImplicit Bias What is implicit bias?What is implicit bias? How might it affect your work?How might it affect your work? How might it affect an ICWA case?How might it affect an ICWA case? How do you recognize and avoid implicit bias?How do you recognize and avoid implicit bias?

Legal BiasLegal Bias

The Indian Child Welfare Act

The ICWA, 25 U.S.C. §§ 1901 et. seq.

The Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989)

Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings, Federal Register, vol. 44, No. 70, Monday, April 23, 1979

Federal Regulations found at 25 C.F.R. Part 23

ICWA and the States Many states have enacted state statutes and rules of court

specific to Indian children and in support of ICWA

Consider also state welfare bulletins, manuals and policies specific to Indian children

Also consider if Tribes and States have entered into any Agreements impacting Indian children

State laws, practices, and policies can only provide greater protections to Indian children and families – ICWA establishes minimum protections

The ICWA 1901 – Congressional Findings

Congress has plenary power over Indian affairs

Congress has assumed the responsibility for the protection and preservation of Indian tribes and their resources

There is no resource more vital to the continued existence and integrity of Indian tribes than their children

There is an alarmingly high percentage of Indian families broken up

States have often failed to recognize the essential tribal relations of Indian people and the cultural and social standard prevailing in Indian communities and families

§1902 Congressional declaration of policy

It is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . .

§1903. Definitions Child Custody Proceedings

Foster care placement – any action removing an Indian child from a parent or Indian custodian for placement . . . where the parent or Indian custodian cannot have the child returned upon demand

Generally does not apply to divorce proceedings or delinquency proceedings

Indian child Member of an Indian tribe Or eligible for membership in an Indian tribe and is the

biological child of a member of an Indian tribe Tribe Determines

§1903 CHECKLIST

Was the family asked in court whether or not the child is affiliated with an Indian tribe?

Consider: Many state laws required ICWA inquiry in all

cases. Duty falls to the agency, what does this have to do

with you.

§1911 Indian tribe jurisdiction over Indian child custody proceedings

“Tribes are separate, distinct nations, whose sovereignty predates the establishment of the United States”

Exclusive jurisdiction Transfer of proceedings, declination by tribal

court State court proceedings; intervention Full faith and credit

§1911 CHECKLISTExclusive jurisdiction Is the child a ward of the tribal court? Is the child domiciled or living on the reservation?

Transfer of proceedings Is there a request to transfer the case to tribal court? Is a request appropriate? If Court denies a request to transfer, did Court make a good cause finding to support denial?

Tribal court declined to accept case Hardship based on distance to tribal court Objection of child over 12 years old Request made at advanced stage of the proceedings Other Consider, US Supreme Court in Mississippi Band of Choctaw Indians v. Holyfield, “Whatever feelings we might have as to

where the twins should live, however, it is not for us to decide that question. We have been asked to decide the legal question of who should make the custody determination concerning these children – not what the outcome of the determination should be.”

Do either of the parents object to the transfer?

State court proceedings Does the state court have jurisdiction? Did the tribe seek to intervene in the case? Did the Court grant the intervention? Was the tribe allowed to present recommendations?

§1912 Pending Court Proceedings

(a) Notice (b) Appointment of counsel (c) Examination of reports or other documents (d) Active Efforts (e) Foster care placement orders – Qualified Expert

Witness (f) Parental right termination orders – Qualified

Expert Witness, Proof Beyond a Reasonable Doubt

§1912(a) CHECKLIST Does the Court know or have reason to know that the child may be an

Indian child, if yes then Notice is required

Was notice provided in person or by registered mail with return receipt requested

Did the judge make finding that the following parties received timely notice:

Tribe(s) Mother Father Indian custodian

No hearing for foster care placement or termination of parental rights until at least 10 days after notice is received

§1912(b) CHECKLIST

Appointment of counsel Was an attorney appointed for the mother? Was an attorney appointed for the father? Was an attorney appointed for the child? Was an attorney appointed for the Indian

custodian?

§1912(d) CHECKLIST Did the court make a finding that the agency made active

efforts to prevent removal or to return the child home? Has the Tribe been involved in the case planning? Has the Tribe been involved in locating relative resources for

the child? Have culturally relevant services been considered for the

family? Did the court make a finding that emergency removal was

necessary to prevent imminent physical damage or harm to the child?

Have the barriers to active efforts being meaningful been addressed

“active efforts” A rigorous and concerted level of case work that uses the

prevailing social and cultural values, conditions and way of life of the Indian child’s tribe to preserve the child’s family and to prevent placement of an Indian child and, if placement occurs to return the child to the child’s family at the earliest time possible. “Active efforts” sets a higher standard than “reasonable efforts’ to preserve the family, to prevent the break-up of the family and to reunify the family.

Minnesota Tribal / State Indian Child Welfare Agreement asamended in 2007

Active Efforts – examples to consider:

Notifying and requesting the involvement of the tribe or designated tribal representative to participate in the case at the earliest possible point and to actively solicit their advice throughout the case

Requesting that a tribally designated representative with substantial knowledge of prevailing social and cultural standards and child- rearing practices within the tribal community, evaluate the family circumstances and assist in developing a case plan that uses tribal and Indian community resources

Providing concrete services and access to both tribal and non-tribal services including, but not limited to, financial assistance, food, housing, health and transportation. Such services should be provided in an on-going manner throughout the case to directly assist the family in accessing and engaging in those services.

Arranging visitation (including transportation assistance) that will take place, whenever possible in the home of a family member while safeguarding the child’s safety

Consulting with extended family members for help and guidance

Providing services to extended family members to allow them to be considered for placement of the child.

See, Minnesota Tribal / State Indian Child Welfare Agreement as amended in 2007.

CONSIDER . . .Concurrent planning

when does concurrent planning begin what permanency options are available in an

ICWA case as an attorney for the child or parent, what role

do you have working with the tribe what if the tribe is out of the state

§1912 (e) CHECKLIST Was Qualified Expert Witness (QEW) testimony presented in the hearing?

What qualifies a QEW What foundation should be laid to qualify a QEW What issues will a QEW address Challenges to QEW qualifications / or testimony Calling an alternative QEW Stipulating to QEW testimony

Did the Court order the child into (or to remain in) out of home placement?

Did the Court make a finding that there was clear and convincing evidence that the child was likely to suffer serious emotional or physical damage if continued in the custody of the parent?

§1912 (f) CHECKLIST

Is the Court considering a termination of parental rights?

Is there proof beyond a reasonable doubt? Is there qualified expert witness testimony to

support the permanency plan?

§1913 Parental rights, voluntary termination

(a) Consent – Where any parent . . .voluntarily consents to a foster care placement or to a termination of parental rights, such consent shall not be valid unless executed in writing and recorded before a judge of competent jurisdiction

(b) Foster care placement – Withdrawal of consent

(c) Voluntary termination of parental rights of adoptive placement – Withdrawal of consent

§1913 CHECKLIST

Is consent in writing Was consent signed in front of judge Was consent signed 10 days after birth of the

child

§1914 Petition to invalidate

Any child . . .any parent . . .any tribe may petition any court . . .to invalidate . . . upon a showing that such action violated 1911 1912 1913

§1915 Placement of Indian Children

(a) Adoptive placement, preferences

A member of the child’s extended family Other members of the Indian child’s tribe Other Indian families

§1915 (b) Foster care placement

A member of the Indian child’s extended family A foster home, licensed, approved, or specified by the

Indian child’s tribe An Indian family foster home licensed or approved

by an authorized non-Indian licensing authority An institution . . .approved by an Indian tribe or

operated by an Indian organization . . .suitable to meet the Indian child’s needs

§1915 CHECKLIST

Were the preference of the Indian child and parent considered? Does the tribe have its own order of placement preferences? Was the child placed within the placement preferences? If not, did the judge make a finding that there was good cause

not to follow the placement preferences? If placement preferences were not followed, why not? How do the placement preferences relate to the “best interests

of the Indian child”?

CONSIDER . . .

“The best interests of Indian children are inherently tied to the concept of belonging. Belonging can only be realized for Indian children by recognition of the values and ways of life of the child’s Tribe and support of the strengths inherent in the social and cultural standards of tribal family systems . . .Indian people understand that their children are the future of their tribes and vital to their very existence. An Indian child is sacred and close to the creator.”

Minnesota Tribal / State Indian Child Welfare Agreement as amended February 22, 2007

ICWA and the BEST INTERESTS OF THE INDIAN CHILD

What factors do you consider when assessing the “best interests” of the child

How does this change in an ICWA case . . .consider:

Best interests for an Indian child, means compliance with and recognition of the importance and immediacy of family preservation, using Tribal ways and strengths to preserve and maintain an Indian child’s family . . . Best interests must be informed by an understanding of the damage that is suffered by Indian children if family and child tribal identity are denied . . .Minnesota Tribal / State Child Welfare Agreement 2009.

Congress did not impose a “best interests” tests as a requirement in ICWA child custody proceedings

“The Act is based on the fundamental assumption that it is in the Indian child’s best interest that its relationship to the tribe be protected.” In re Appeal in Pima County Juvenile Action No. S-903, 130 Ariz., at 204, 635 P.2d. At 189.

Resources SAMHSA Culture Card:

http://store.samhsa.gov/shin/content/SMA08-4354/SMA08-4354.pdf

ICWA Brochures http://hss.state.ak.us/ocs/Publications/pdf/ICWA_Brochure.pdf

Native American Rights Fund, Practical Guide to the Indian Child Welfare Act http://www.narf.org/icwa/index.htm

National Indian Child Welfare Association http://www.nicwa.org

Tribal Court Clearinghouse http://www.tribal-institute.org/lists/icwa.htm Working Effectively with Tribal Governments (online cultural competency course)

http://tribal.golearnportal.org

Indian Child Welfare Act Law Center http://www.icwlc.org/training.html