Indian Child Welfare Act

1. Indian Child Welfare Act Margaret Burt, JD, Karen Matthews, LMSW, Hon. Anne Simon Together We Can November 7, 2017

2. Preliminaries • Introduce presenters • Survey audience: • DCFS? Attorneys? Judges? Foster Parents? Others? PURPOSE: What everyone involved in CINC cases needs to know about ICWA and why they need to know it, UPDATE on the implications of the 2016 FINAL RULE, and pending court challenges HAVE YOU HAD ISSUES WE MIGHT HELP WITH?

3. WHY WE NEED TO KNOW ICWA 1. ICWA is important for the preservation of Indian culture. 2. Nationwide, invalidations of adoption proceedings are being actively pursued – consequences of invalidations are tragic for children and families. • §1914: Invalidations lie for any placements violating §§1911, 1912, 1913. 3. ICWA is broader than generally believed. In effect whenever child removed

4. RECENT BIG CHANGES “Baby Veronica”SCOTUS 6/25/13 interpreted ICWA in a private adoption case. NEW REGULATIONS! 25 CFR 23 - 12/12/16 NEW GUIDELINES Issued December 2016

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

6. BEFORE ICWA Abusive child welfare practice separated 30% of Indian children from their families. CHILDREN REMOVED TO BOARDING SCHOOLS Well into the 20th Century ADOPTIONS TO NON-INDIAN FAMILIES Multiplied in 1950s IMPACT CONTINUES FOR GENERATIONSÍ

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.

9. Crisis In a 1969 survey of 16 states, 85% of Indian children in foster care were placed in non-Indian homes In South Dakota 40% of all adoptions 1967-68 were Indian; Indian population of state was 7% In North Dakota and the Northwest, studies showed that only 1% of Indian children were removed due to allegations of abuse

10. 1977-78 Congressional Hearings Witness after witness testified about the removal of Indian children, often without a scintilla of due process In 1971, 34,538 Indian children lived in institutional facilities On the Navajo Reservation, 90% of BIA school population in K-12 lived in boarding schools

11. What about the treatment of Louisiana Native Tribes? • Difficult to find specific data or evidence • Look at the result? • Attakapas gone • Of the four federally recognized tribes, only Chitimacha live on native lands

12. 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 • An alarmingly high percentage of Indian families are 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

13. 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.

14. ICWA --- §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 . . .

15. ICWA is a work in Progress • Policy is only the first step • Financial Resources and Enforcement sorely needed • Original law provided tribal grants for welfare services • 1980 – Availability of IV-E funding • Tribes still behind in access to services • Applicability of ICWA not universally recognized in state courts INDIAN CHILDREN IN CARE STILL OVER-REPRESENTED

16. WHAT DOES ICWA DO? • Recognizes the special status of Native Americans and acknowledges that past policies adversely impacted Indian families and tribes • Outlines prerequisites to removal of Indian children, placement preferences, requires qualified expert testimony, and provides for enforcement of the protections

17. Make Sure: • Make sure you are using the NEW regulations and the NEW Guidelines when you are looking up the law • Of course case law not really there yet but New Regs and New Guidelines have lots of commentary built in

18. Why after all the years are there now new regs and new guidelines? • Continuing concern that ICWA is not being adhered to by state agencies and state courts • Continuing concern of variations in state court application of ICWA • A desire to clarify some of the issues and confusion in the federal guidelines from 1979 and the ones from 2015 • Have the force of regs – and also a “guidance”

19. The Key Questions • 1. Is this an ICWA child? • 2. Is this an ICWA action? • 3. What is the proper jurisdiction? • 4. Who needs to be noticed? • 5. What are the special evidentiary rules if the matter stays in state court? • 6. What are the placement preferences? What is impacted by the new federal regulations and the new federal guidelines?

20. Question 1 • Is this an Indian child under the Indian Child Welfare Act? • § 1903 (4)

21. WHO IS AN INDIAN CHILD?A POLITICAL QUESTION • Unmarried and • Under 18 years old and • Member in a federally recognized tribe or • Eligible to be a member and the biological child of a member • NOTE: Statute uses term “member” some tribes use other terms like enrolled

22. New Regulations • If child was ICWA before age 18 and the proceedings continue after age 18, ICWA will continue to apply §23.103(d) • Requires that in every emergency, involuntary or voluntary proceedings, the court must inquire if anyone knows or has reason to know that the child may fit the ICWA definition § 23.107(a) • IF the court does not know, must be diligent efforts with tribes who may be child’s tribe to find out § 23.107(b)(1)

23. New Regulations • If there is reason to think the child may be ICWA, court MUST apply ICWA until there is confirmation that the child is not ICWA § 23.107(b)(2) WOW!

24. OK, so what does that mean • Court must ask all participants at the beginning of the proceeding and record responses on the record, must instruct the parties to inform the court if they receive info • Confirm on the record due diligence of agency or other party to ID and work with tribes to determine membership/eligibility • Treat the child as an ICWA child if reason to know

25. “Reason to Know” § 23.107(c) • Anyone in case, any attorney, any tribe or tribal organization or agency says the child is Indian or that they have discovered info that indicates child is Indian • Child gives the court reason to know • Court learns that child or parent’s domicile is on a reservation • Court learns child is or was a ward of a tribal court • Child or parent has a tribal ID cards

26. What makes a child a “member” or eligible to be a member? What are the tribes membership? Again – may use different terms , such as enrollment

27. ISSUES • Is membership about blood quantum? • How will agency, court learn membership rules? • What about the Multi Ethic Placement Act of 1994 and the Inter Ethnic Adoption Provisions Act of 1996?

28. REMEMBER… There are over 500 other federally recognized tribes in the US, and any child in your state could be a member or eligible to be a member of any of those

29. Bottom Line: • Only the sovereign entity of the tribe can determine if the child is an ICWA child as only they can determine if child is a member or enrollable as a member and a child of a member • Reinforced by the new regs – state court MAY NOT substitute the judgment of a tribe regarding a child being a member, being eligible to be a member or that a parent is a member § 23.108

30. Question 2 • Is this an action or proceedings that requires the application of the Indian Child Welfare Act? • § 1903(1)

31. TO WHAT LEGAL PROCEEDINGS DOES IT APPLY? • Child being placed in foster care due to abuse/neglect (or transferred) • Child being placed on status offenses or voluntary where child cannot be returned upon demand

32. MORE APPLICATIONS • Child custody with non-parent • Termination proceedings • Pre-adoptive placements • Adoptions—including stepparent, public and private

33. Does NOT apply to: • Divorce or Custody Between Two Parents • Juvenile Delinquency, Criminal Acts • Paternity /Support • Domestic Violence • Totally Voluntary/At Will Placements

34. New REGs • Clarifies that ICWA applies to a placement that might be “consented to” by the parent or Indian custodian but that this was done under threat of removal by the court or the agency • Clarifies that “upon demand” means that a mere verbal request returns the child and if there is anything more needed then a verbal request, the placement is NOT voluntary

35. NEW Regs • While a “voluntary” placement into foster care that strictly allows the child to be returned upon verbal request of the parent or custodian is not covered by ICWA – unless there was a threat of removal by the court or the agency – a “voluntary” adoption is always covered by ICWA • Parties in a voluntary must state on the record if the child is an Indian child or reason to think so and state court must ensure that steps are taken to verify tribal status

36. PROTECTS: • Indian children • Bio parents of Indian children (even if they are non-Indian) • Indian custodians

37. What do the new regs have to say • In determining that the matter is ICWA, the state court may not consider if the parents participate in tribal activities, may not consider the relationship of the child with the Indian parent, if the parent has ever had custody or the child’s blood quantum • Also says that “continued custody” includes legal or physical custody or both as interpreted by tribal law, custom or state law

38. Question 3 • Where is the case heard? Who has jurisdiction? State court? Tribal court? Both? • § 1911

39. Concepts • Exclusive jurisdiction – only can be handled by a tribal court • Transfer – can be moved from state court to tribal court • Right to Intervene – tribe can be involved in the state court action § 1911

40. INDIAN TRIBE EXCLUSIVE JURISDICTION • § 1911(a) – in a voluntary or involuntary: 1.Indian child who is a ward of a tribal court OR 2. Indian child who resides or domiciled on a tribal reservation where tribe exercises exclusive jurisdiction over child custody proceedings – state court can determine residence or domicile Mississippi Band of Choctaw v Holyfield 490 US 30 (1989)

41. New Regs on “Domicle” §23.2 • For parent – place person regards as home, place person intends to return and live indefinitely even if person may be currently residing elsewhere • For child – the domicle of the child’s parents, if born out of wedlock, domicle of the custodial parent

42. EXCEPTIONS TO EXCLUSIVE JURISDICTION RULE • Older federal law allowed for concurrent jurisdiction with state courts but now some tribes have retroceded

43. New Regs §23.10 • If exclusive jurisdiction – state court must notify the tribal court that it will dismiss, must then dismiss and make sure all info is sent to the tribal court such as pleadings and court record

44. STATE COURT JURISDICTIONIn an voluntary or involuntary placement Indian child who does not live on the reservation BUT subject totransferto a tribal court or to intervention by tribe in state court proceeding So if it is not exclusive jurisdiction to tribal court the two options are: Transfer or Intervention § 1911 (b) and (c)

45. Transfers to Tribal Court • Tribe or parent can ask for the transfer at any time • Either parent (tribal or not) can oppose and stop the transfer • State court must transfer if both tribe and parents want it and can only retain jurisdiction if there is “good cause” • Court can transfer case but child can stay in state care

46. New Regs • Transfer request can be made orally or in writing §23.115(a) • Available “at any stage” in each proceedings §23.115(b) • Notify the tribal court of the transfer request and may request timely response to question of tribal court declining § 23.117

47. New Regs on Transfer • Entity seeking refusal must state their good cause arguments on the record, other parties must be given opportunity to respond §23.118 (a)(b) • Court must state basis if denying transfer on the record § 23.118 (d) • If transferred – all records go to tribal court §23.119

48. Good Cause to Refuse Transfer? §23.118 • Either parent or tribe says they do not want it to transfer will stop transfer • “Advanced Stage” when notice was not provided until advanced stage? NO • Not sufficient connection to tribe? NO • Prior proceeding where no request was made? NO • Transfer might affect placement? NO • Socio economic conditions or negative perceptions of tribes social services or court? NO

49. TRIBAL INTERVENTION IN STATE COURT • Tribe’s right • At any time – including appeals! • Parent, agency, child, court cannot prevent • Even where not going to appear in person • Not specifically listed for adoption proceedings

50. REMEMBER ICWA APPLIES EVEN IF TRIBE DOES NOT APPEAR OR IS UNABLE TO BE INVOLVED