The Indian Child Welfare Act: Policy & Practice

1. The Indian Child Welfare Act: Policy & Practice Ashley Horne, Government Affairs Associate NICWA 503-222-4044, ext. 122 ahorne@nicwa.org

2. Federal Indian Policies at a Glance • American history (European immigration, colonization, etc.) and federal Indian policy (removal, termination, etc.) have impacted tribes since initial contact. • Review of federal Indian laws and their implementation provides a context for understanding current socio-economic and political challenges — and underscores the importance of the Indian Child Welfare Act (ICWA).

3. Federal Indian Policies at a Glance • The Civilization Act of the early 1800s intended to “civilize” and “Christianize” Indians through federal and private means. • The Indian Removal Act of 1830 was enacted to move Indians away from traditional homelands to “Indian Territory” west of the Mississippi so as to provide European immigrants with land and to prevent further conflict between colonists and tribes. • Starting in the 1860s, Indian children were removed from their homes and sent to military style boarding schools, implementing federal policy aimed at assimilating Indian children.

4. Federal Indian Policies at a Glance • With the passage of the Dawes Allotment Act of 1887, Indian land was divided up in an effort to turn Indians into nuclear families and farmers. It was with this law, that the concept of blood quantum (stemming from military’s knowledge of horse breeding) was introduced as a concept of tribal enrollment.

5. Federal Indian Policies of the 1900s • Initiated in 1959, the Indian Adoption Project (Bureau of Indian Affairs and the Child Welfare League of America) and the adopting-out of Indian children to Christian non-Native families • Public Law 83-280 of 1953 was enacted during the termination era in which one hundred and nine tribes were “ordered to cease exercising governmental powers and to disperse all land and property to tribal members.” Public Law 280 was an interim step towards the termination of some tribes. It provided for states, some as a mandatory matter and others at their option, to exercise criminal jurisdiction over all AI/AN people living within the state and over “civil causes of action” involving AI/AN people residing in the state as well. • Relocation program of 1950s and 60s.

6. Federal Indian Policies of the 1900s • In the 1960s, tribes began to question the placement rate of their children into non-Native homes. • In the 1970s, the Association on American Indian Affairs (AAIA), New York, conducted surveys to discover the extent of Indian child welfare issues. • Studies found 25-35% of all Indian children had been removed from their families and placed into non-Native care. • Findings created and expressed national tribal concern, leading to action and advocacy. • In 1978, Congressed passed the Indian Child Welfare Act (ICWA)

7. ICWA: Congressional Findings • § 1902. Congressional Findings- (3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe; (4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by non-tribal 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

8. ICWA: Congressional Findings (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 and the cultural and social standards prevailing in Indian communities and families.

9. ICWA: Congressional Declaration of Policy • § 1902. Congressional declaration of policy- The Congress hereby declares that 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 the placement of such children in foster or adoptive 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.

10. Initial Determinations: Will This Be an ICWA Case? • Is this an Indian child? In order for ICWA to apply, the child must be: • Unmarried, under 18 years of age; and • A member of a federally recognized Indian tribe, including an Eskimo, Aleut or other Alaska Native; or • A child eligible for membership in a federally recognized tribe, including an Eskimo, Aleut or other Alaska Native and biological child of a member of an Indian tribe. • The WA Tribal-State Agreement extends the definition of Indian child to include members of tribes recognized by Washington State and members of Canadian Native bands. • Inquiry of Indian status must be made by the petitioning party if there is reason to believe a child is Indian. • A tribe is the only entity that can make a determination of membership.

11. Proceedings Covered by ICWA • ICWA covers voluntary and involuntary child custody proceedings in state court: • Foster care placements in foster homes or institutions • Termination of parental rights • Pre-adoptive placements in homes or institutions • Guardianship placements • Adoptive placements

12. Proceedings Not Covered by ICWA • ICWA does not cover: • Situations where the public agency is providing services to the family, but the child has not been removed and is not a ward of the state court • An award or dispute of custody related to divorce proceedings • Most juvenile delinquency proceedings Except: • Juvenile delinquency proceedings where TPR may occur • Status offenses (e.g. drinking, runaway, truancy)

13. Who Has Jurisdiction? • The tribe has exclusive jurisdiction if the child resides or is domiciled on tribal lands (tribe determines this) or the child is currently a ward of a tribal court. • P.L. 280 gave states concurrent jurisdiction with tribes in some areas. • State courts exercise temporary jurisdiction over a child who is temporarily living off the reservation. • If the Indian child is not living on tribal lands, the state court must still transfer jurisdiction to the tribal court, unless: • There is “good cause to the contrary” • Tribe or parent(s) object to transfer • The Indian tribe, parent, or Indian custodian must petition to have the case transferred to tribal court.

14. ICWA Proceedings • Child’s tribe, Indian parent, and Indian custodian have the right to intervene at any point in child custody proceedings. • State agency/court must send notice, by registered mail, to parent, Indian custodian, and tribe of pending proceedings. • No proceeding shall occur until at least 10 days after receipt of notice (interveners can request an additional 20 days). • All parties have right to examine all reports or documents filed with the court. • The court must be satisfied that active rehabilitativeefforts have been made to provide remedial services to the Indian family.

15. Involuntary Foster Placements • Under ICWA, no foster placement may be ordered without “clear and convincing evidence” that “continued custody of a child by the parent is likely to result in serious emotional or physical damage to the child.” • Active efforts to provide remedial services to prevent family breakup must have been provided prior to removal and after removal to assist reunification.

16. Foster Placement Preferences • Foster placements must follow the following order unless there is good cause to the contrary. • Member of the Indian child’s extended family • Foster home licensed or approved by child’s tribe • Indian foster home licensed or approved by an authorized licensing authority (state or tribe). • An institution for children approved by an Indian tribe or operated by an Indian organization.

17. Termination of Parental Rights • Termination of parental rights (TPR) not be ordered without evidence “beyond a reasonable doubt”, including testimony of a qualified expert witness, that “continued custody of a child by the parent is likely to result in serious emotional or physical damage to the child.” • Active efforts to provide remedial services to prevent family breakup and assist with reunification must have been provided prior to TPR. • Provisions of the Adoption and Safe Families Act (ASFA) pertaining to TPR do not modify those of ICWA.

18. Adoptive Placement Preferences • Preference in placing an Indian child for adoption must be given to: • A member of the child’s extended family. • Other members of the child’s tribe. • Other Indian families.

19. Under ICWA, testimony of qualified expert witnesses is required to support court’s determination for involuntary out-of-home placement. A “qualified expert witness” is meant to apply to expertise beyond the normal social worker and should be selected/recognized by the tribe. Tribal members knowledgeable in family organization and child rearing practices Lay experts with experience in Indian child and family services Use of Expert Witnesses

20. Voluntary Foster and Adoptive Placements • Voluntary consent to TPR must be done in writing and recorded in presence of a judge. • Certification is required that the parent fully understood their consent. • Any consent for adoption given prior to, or within, 10 days after birth is not valid. • Consent to TPR or adoption may be withdrawn at any time for any reason prior to the entry of final adoption decree. • Consent to foster care can be withdrawn at any time and the child must be returned to the parent. • Adoption can be overturned within two years of final adoption decree if fraud or duress in obtaining consent is proven.

21. ICWA and Post-Adoption • An Indian adoptee who is at least 18 years old may, through the court, request their adoption records to identify their possible tribal affiliation and any rights they may be entitled to as an Indian person. • It is Important to consider the rights and privileges associated with tribal citizenship. These include, but are not limited to, the right to vote, hold office, own land, conduct traditional functions or assume inherited cultural roles, and the right to any applicable educational, health, or economic benefits.

22. ICWA and ASFA: Successful Integration and Compliance David Simmons, Director of Government Affairs and Advocacy Ashley Horne, Government Affairs Associate NICWA 503-222-4044 ahorne@nicwa.org

23. ASFA TPR must be filed: in care 15 of last 22 months (timeline varies), child has been abandoned, or serious crimes against child have occurred. Exceptions to TPR: relative care, best interests, or case plan services not achieved. Locate adoptive family when exceptions do not apply. ICWA TPR should only occur when legal standards met: Evidence beyond a reasonable doubt, including expert witness testimony, continued custody by parent is likely to result in serious harm; and active efforts made. Termination of Parental Rights

24. Integration of ASFA and ICWA: Termination of Parental Rights Indian children may be eligible for TPR exceptions (case-by-case determination): • ICWA preferred placement is extended family (in relative care). • ICWA legal standards for TPR - if not met, grounds to avoiding filing (not in best interests). • Active efforts not provided - grounds to avoiding filing (case plan services not provided).

25. Resources • Text of ICWA, federal guidelines, and practice help at the National Indian Child Welfare Association’s (NICWA) website: www.nicwa.org • Comprehensive online guide to implementing ICWA at the Native American Rights Fund (NARF) website: www.narf.org • Legal services listings by state: http://www.ptla.org/ptlasite/links/services.htm • Some states have Indian legal services programs.

26. Resources • Bureau of Indian Affairs (BIA) Regional Offices contact information: http://www.dhs.state.or.us/policy/childwelfare/icwa/bia_offices.htm • National Congress of American Indians (NCAI) listing of federally-recognized tribes: http://www.ncai.org/Tribal-Directory.3.0.html • Individuals trying to determine eligibility for tribal membership for themselves, a parent or child should ask for the tribal child welfare program and/or tribal enrollment office. Only Indian tribes can issue membership determinations.

27. Resources • WA Office of Indian Policy: http://www.dshs.wa.gov/oip/aboutoip.shtml • WA CA ICW Page and ICW Manual accessible from outside the firewall: • ICW Page - http://www.dshs.wa.gov/ca/services/srvicw.asp • ICW Manual - www.dshs.wa.gov/ca/pubs/mnl_icw/chapter1.asp

28. www.nicwa.org National Indian Child Welfare Association Let us put our minds together and see what kind of life we can build for our children - Sitting Bull