Representing Parents in ICWA Proceedings: Successes and Challenges

1. Representing Parents in ICWA Proceedings: Successes and Challenges

2. Overview • This training will focus on the ICWA and families who the ICWA impacts. • The ICWA is intended to protect the long term best interests of Indian children, by maintaining the integrity of the Tribal family, the extended family and the child’s Tribal relationship. • The best interests of Indian children are inherently tied to the concept of belonging. Extended family Indian child family Tribe Text The ICWA

3. The Indian Child Welfare Act Cultural and Historical Context

5. Indian people have a long and proud history of strong families and tribes

6. TRIBES HAVE ALWAYS HAD CONFIDENCE REGARDING THEIR CHILD REARING TRADITIONS

7. Boarding School Era 1800 – 1950’s 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.

8. The goal of boarding schools was to “civilize” indian children (before)

9. Boarding schools liked to show before and after pictures to show their success in “transforming” children (after)

10. 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.

11. The ICWA was enacted by the US Congress in 1978 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.

12. TODAY MANY TRIBAL MEMBERS LACK INFORMATION ABOUT THEIR OWN HISTORY AND TRADITIONS WE ARE REBUILDING INDIAN NATIONS

13. HISTORICAL TRAUMA: CHAIRWOMAN ERMA VIZENOR White Earth Tribal Nation 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.

14. Bias & working with Indian Families • Implicit Bias • What is implicit bias? • How might it affect your work? • How might it affect an ICWA case? • How do you recognize and avoid implicit bias? • Legal Bias

15. 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

16. 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

17. 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

18. §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 . . .

19. §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

20. §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.

21. §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

22. §1911 CHECKLIST Exclusive 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?

23. §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

24. §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

25. §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?

26. §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

27. “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 as amended in 2007

28. 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.

29. 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

30. §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?

31. §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?

32. §1913 Parental rights, voluntary termination • 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

33. §1913 CHECKLIST • Is consent in writing • Was consent signed in front of judge • Was consent signed 10 days after birth of the child

34. §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

35. §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

36. §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

37. §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”?

38. 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

39. 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.

40. 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