ICWA - National Association for Court Management

Presented by Hon. Timothy Connors Circuit Court Judge Robert G. Carbeck, Trial Court Administrator Washtenaw County, Michigan with assistance from Allie Greenleaf Maldanado

Tribal Attorney for and Member of Little Traverse Bay Bands of Odawa Indians ,Michigan

 1) Historical Genesis

 2) Application  3) Compliance and Resources

 Affiliated with State Court Justice Systems  Interested in Education  Committed to Following the Law

 Identify = Who?

 Action = What?  Time = When?  Location = Where ?  Process = How?  Motivation = Why?

 Visualization = Describe  Sharing = Explain

 Current U.S. Indian Law is Rooted in European

Colonialization Attitudes of Papal Declaration of “Doctrine of Discovery”  The U.S. View of Indian Law Arises out of the Commerce Clause of the Constitution Article I Section 8 Clause 3: The Congress shall have power…to regulate commerce with foreign nations, and among the several states, AND WITH THE INDIAN TRIBES

 The U.S. Supreme Court has Interpreted this Provision

to Give “Plenary Power” to Congress with Respect to Indian Nations  The Policies of Congress has Been a Reflection of the

Ever Changing Will of the American Voting Populace

 The “Plenary Power” of Congress has Manifested in

Contradictory Goals :  Negotiation (Treaties)  Removal (Reservations)  Extinction (P.O. W.’ s)  Assimiliation  Termination  Self-Determination  ICWA is the Product of this Policy of Self-Determination

Why did Congress pass ICWA? • April 8, 1974 Congress began a series of hearings regarding Indian child welfare in the United States. Numerous experts and witnesses from across the country gave testimony under oath. • The disturbing facts revealed in those hearings showed that U.S. Federal and state government's had a wellknown policy of removing Indian children from their families and tribes in an attempt to assimilate them into white culture by placing them in white families or institutions. • It became clear that the United States had a crisis of massive proportions on their hands. • Official government policy was destroying the fabric of Indian families and endangering the very existence of tribal governments.

The National Statistics Shocked Congressional Leaders “In Montana, the ratio of Indian foster care placement is at least 13 times greater [than for non-Indian children]. In South Dakota, 40 percent of all adoptions made by the State…are of Indian children, yet Indians make up only 7 percent of the juvenile population. The number of South Dakota Indian children living in foster homes is per capita nearly 16 times greater than the non-Indian rate. In the State of Washington, the Indian adoption rate is 19 times greater and the foster care rate is 10 times greater.” 95th Congressional Record, Report No. 1386, *8-9.

Removing Indian Children from their Families was a Government Policy “Separating Indian children from their parents and tribes has been one of the major aims of governmental Indian services for generations. The assumption is that children and particularly those in any kind of difficulty would be better off being raised by someone other than their own parents. The purpose of the first boarding school on the Navajo reservation as stated in its charter in the 1890's was "to remove the Navajo child from the influence of his savage parents.“” STATEMENT OF DR. ROBERT BERGMAN, INDIAN HEALTH SERVICE, GALLUP, N. MEX., Hearings before the Subcommittee on Indian Affairs, April 8 and 9, 1974, P128.

Evidence of the Policy Was Overwhelming In 1886, the Commissioner of Indian Affairs stated, “It is admitted by most people that the adult savage is not susceptible to the influence of civilization, and we must therefore turn to his children, that they might be taught to abandon the pathway of barbarism and walk with a sure step along the pleasant highway of Christian civilization.... They must be withdrawn, in tender years, entirely from the camp and taught to eat, to sleep, to dress, to play, to work, to think after the manner of the white man.”

What was the Result of the Government’s Destructive Policy? Testimony of Mr. William Byler, Executive Director, Association on American Indian Affairs “Statistical and anecdotal information show that Indian children who grow up in non-Indian settings become spiritual and cultural orphans. They do not entirely fit into the culture in which they are raised and yearn throughout their life for the family and tribal culture denied them as children. Many native children raised in non-Native homes experience identity problems, drug addiction, alcoholism, incarceration and, most disturbing, suicide.”

“They had virtually no viable Indian identity. They can recall such things as seeing cowboys and Indians on TV and feeling that Indians were a historical figure but were not a viable contemporary social group. Then during adolescence, they found that society was not to grant them the white identity that they had. They began to find this out in a number of ways. For example, a universal experience was that when they began to date white children, the parents of the white youngsters were against this, and there were pressures among white children from the parents not to date these Indian children…The other experience was derogatory name calling in relation to their racial identify…They were finding that society was putting on them an identify they didn’t possess and taking from them an identity that they did possess.” FN1 Dr. Joseph Westermeyer, University of Minnesota Psychiatrist

“Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People. Furthermore, these practices seriously undercut the tribes’ ability to continue as self-governing communities. Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.” 1978 Hearings at 193 FN2 Mr Calvin Isaac, Tribal chief of the Mississippi Band of Choctaw Indians and Representative of the National Tribal Chairman’s Association.

“Indian Tribes and Indian People are being drained of their children, and, as a result, their future as a Tribe and a people is being placed in jeopardy.” FN3 U.S. House Rep. Morris Udall

 “One of the most serious failings of the present system

is that Indian children are removed from the custody of their natural parents by nontribal government authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and childrearing. Many of the individuals who decide the fate of our children are at best ignorant of our cultural values, and at worst contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian Child.”  FN3 Chief Isaac

 One of the particular points of concern was the failure of

non-Indian child welfare workers to understand the role of the extended family in Indian society. The House Report on the ICWA noted: “An Indian child may have scores of, perhaps more than a hundred, relatives who are counted as close, responsible members of the family. Many social workers, untutored in the ways of Indian family life or assuming them to be socially irresponsible, consider leaving the child with persons outside the nuclear family as neglect and thus as grounds for terminating parental rights.” FN4 U.S. House Report

 “We’ve had testimony here that in Indian communities

throughout the Nation there is no such thing as an abandoned child because when a child does have a need for parents for one reason or another, a relative or a friend will take that child in. It’s the extended family concept.” FN4 U.S. Senator Aboureck

"(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children . . .; "(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and "(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people [490 U.S. 30, 36] and the cultural and social standards prevailing in Indian communities and families." 25 U.S.C. 1901.

• Created ICWA’s notice requirements. • Gave rise to ICWA’s protections for Indian custodians. • Included heightened removal standards such as the

requirement of testimony from a qualified expert witness for removal and termination of parental rights, and the beyond a reasonable doubt standard for termination of parental rights.

Minimum Federal Standards

ICWA establishes minimum Federal standards for the removal of Indian children from their families, and the placement of Indian children in foster or adoptive homes or institutions that reflect the values of Indian culture.

ICWA Attempts to Fix What Official Government Policy Broke by Promoting the Following Goals: 1.

Protect the best interests of Indian children and families as determined by tribes.

2.

Promote the stability and security of Indian families.

3.

Recognize and strengthen the role of tribal governments in determining child custody issues.

In other words, compared to pre-ICWA practices, ICWA purposefully makes it more difficult for state governments to remove Indian children from their homes.

 Congress received statistical evidence proving that the

removal of Indian children was a crisis of massive proportions.  Congress heard testimony given under oath documenting how pre-ICWA abuses tore apart Indian families with little recourse.  Congress took responsibility for removal practices that were born from the government’s official, welldocumented assimilation policy.  In response to the overwhelming evidence, Congress passed the Indian Child Welfare Act.

Application

 Every State Court in the United States  Every Indian Child who is a member of, or Eligible for

membership in 1 of the 565 Federally Recognized Tribes  Who defines membership?

Tribe

 When Tribe Has Jurisdiction* :  Tribe has EXCLUSIVE Jurisdiction when

Child Resides or Domiciled Within Reservation Child Ward of Tribal Court  Tribe Has CONCURRENT Jurisdiction when Child not Domiciled on Indian Reservation  Definition of Domicile Uniform Definition under Federal, not State Law. Parents Physical Presence and Intent Defines Domicile of Child 

Supra pps. 44-47 *PL 280 States e.g. Minnesota, Wisconsin

Holyfield,

 Child Born in Wedlock? Parents Domicile

 Child Born out of Wedlock? Mother’s Domicile  Tribal Ward? Tribes Domicile

 Conclusion: Domicile Determines Tribe’s Exclusive or

Concurrent Jurisdiction, Not Absence of Jurisdiction

 Non-Federally Recognized Indian Child  Tribal-State Agreement Voluntarily Granting Jurisdiction

 Limited Emergency Situation for Reservation

Resident/Domiciled/Wards  CONCURRENT if Indian Child Not Domiciled on

Reservation

 The Law Indicates that State Courts are to Give

Deference to Tribal Courts When an Indian Child is Involved

HOW IS THIS ACCOMPLISHED?

 25 U.S.C. Sec. 1911(c) Mandates the Right to Intervene

in State Court for BOTH the Child’s Custodian AND the Child’s Tribe  The Tribe is a Real Party in Interest on Equal Footing with Biological Parents or Custodian  25 U.S.C. Sec. 1912 Requires Notification to Child’s Parents, Custodian and Tribe of Right to Intervene.  FAILURE TO NOTIFY IS NOT HARMLESS ERROR This Misconception is the First Source of Non-Compliance

 Is an Attorney Required to Intervene?  How Accomplished? Written or Oral Motion  Mandatory Timeline? Law States AT ANY TIME

Intervention Can Occur on Appeal  Objections? Parties Can Always Object but OBJECTIONS do not Dictate Result. Objections Do Not Obviate Rights  Responsibilities of Intervenor? Same as Any Party (Participate, Comply with Discovery, Appear, Withdraw AND Motion for Transfer

 Not All 565 Federally Recognized Tribes Have a Tribal

Court to Transfer to  Not All 565 Federally Recognized Tribes have

Sufficient Resources to Transfer EVERY Case, Even if They Have a Tribal Court  Federal Reimbursement to State Courts is sixty cents

on the dollar. For Tribal Courts it is 15 cents.

 24 U.S.C. Sec. 1911 (b) In any state court proceeding for

the foster care placement of, or termination of parental rights to, and Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided, that such transfer shall be subject to declination by the tribal court of such tribe.

 When either parent objects to the transfer that is an

absolute bar to transfer;  If the tribal court declines to take the case that bars transfer; and  Finally, a state court can find good cause not to transfer. Unfortunately, ICWA does not define good cause.

Legislative History on the meaning of “Good Cause” not to Transfer “(t)he subsection is intended to permit a state court to apply a modified doctrine of forum non conveniens, in appropriate cases, to insure that the rights of the child as an Indian, the Indian parents or custodian, and the tribe are fully protected.” Indian Child Custody Proceedings, 44 Fed. Reg. 67, 584, 67, 591 (Bureau of Indian Affairs Nov. 26, 1979) (guidelines for state courts)(quoting H.R. Rep. No. 95-1386 at 21 (1978)); Yavapai-Apache Tribe v. Mejia, 906 S.W. 2d 152, 165 (Tex. App. 1995)

A. Good cause not to transfer the proceeding exists if the Indian child’s tribe does not have a tribal court as defined by the Act to which the case can be transferred. B. Good cause not to transfer this proceeding may exist if any of the following circumstances exists: i. The proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing

 If a Tribe Does Not Intervene or Respond, Does That

Excuse the State Court from Not Following ICWA?

NO  “Good Cause” not to transfer is not good cause to

ignore ICWA. This Misconception is the Second Source of Non-Compliance

Sec. 1903 “ANY CHILD CUSTODY PROCEEDINGS”  Foster Care Placement  Guardianships  Termination of Parental Rights  Adoptions and Pre Adoptive Placement  Domestic Relations if Placement is with a Non-

Biological Parent  Juvenile Delinquency if “Status Offense”(If Act Would be a Crime if Committed by an Adult, ICWA Does Not Apply)  Can also Apply to Some Voluntary Proceedings

 ICWA Intends a Higher Standard For Removal Than Many

State Standards  HOW is this Higher Standard Enforced?  25 U.S.C. Sec. 1912 (d) “ACTIVE EFFORTS”:  To Provide Remedial Services and Rehabilitative Programs Designed

to Prevent the Breakup of the Indian Family and that these Efforts have Proven Unsuccessful”

 Versus State Reasonable Efforts

 Beyond a Reasonable Doubt Standard for Termination of

Parental Rights Misconception on this point is the third source of non-compliance

 ICWA Requires Testimony from a Qualified Expert Witness

that the Continued Custody of the Child by the Parent or Indian Custodian is Likely to Result in Serious Emotional or Physical Damage to the Child 25 U.S.C. Sec. 1912 (e) and (f)  The QEW Must Have Sufficient Knowledge About Tribal Customs, Tribal Family Organization, Tribal Child Rearing Practices, Indian Social and Cultural Standards Misconception on the QEW is a Fourth Source of Non Compliance

 ICWA Has a Different Required Placement Standard:  A Member of the Child’s Extended Family  Other Members of the Child’s Tribe  Other Indian Families, Including Single Parent Families Misconception on Placement is a Fifth Source of Non Compliance

 Five Areas of Misconception that are Sources for Non-

Compliance 1. Tribe is a Real Party in Interest on Equal Footing with Biological parents or Custodian. Result: Tribe Entitled to Notice and Participation

2. ICWA Still Applies Even if Tribe Does Not Intervene or Respond Result: Still Give Notice ; Still Follow Heightened Standards for Removal; Still Follow Placement Preferences; Still Use Appropriate QEW.

3. Higher Burden of Proof than State Law Result: Active Efforts vs. State Reasonable Efforts; Beyond a Reasonable Doubt for Termination of Parental Rights

4. QEW Required Testimony Result: QEW Must Have Sufficient Knowledge About Tribal Customs, Tribal Family Organization, Tribal Child Rearing Practices, Indian Social and Cultural Standards

5. Different Placement Standards Than State Law Result: Required order of Priority 1. A Member of the Child’s Extended Family 2. Other members of the Child’s tribe 3. Other Indian Families, Including Single Parent Families

 NCJFCJ Suggestions  Specialty Courts

 Click on the Court Resource Guide option  Native American Rights Fund http://www.narf.org/

 Carlisle Boarding School Records

http//www.carlisleindianschool.org  SCAO Court Resource Guide available at:  http://courts.michigan.gov/scao/services/CWS/CWSPubli

cations.htm  NCJFCJ Checklist