Understanding ICWA

Understanding ICWA A Review of the Indian Child Welfare Act of 1978

The Indian Child Welfare Act (ICWA) was created pursuant to a recognized federal responsibility to the American Indian population in an effort to preserve the heritage and identity of the American Indian Culture. PURPOSE: (1) To affirm tribal authority and establish exclusive tribal jurisdiction over cases involving American Indian Children (2) To set minimum standards for the handling of such cases that remained in state courts. Background of ICWA

Deriving its stated plenary power over Indian Affairs from the Commerce Clause of the US Constitution (Art.1 , §8, cl.3), The federal government passed ICWA in 1978 in response to the largely uncontrolled deterioration of American Indian heritage and identity. (Title 25 Chapter 21 Sections 1901, et al) The constitutionality of ICWA was affirmed in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989).In this case, the Court affirmed that the Choctaw tribe held exclusive jurisdiction over the adoption proceedings involving twin children whose parents were members of that tribe. Enactment of ICWA

Sources of Law • Federal Statutes, 25 USC § 1901-1963 • BIA Guidelines for State Courts, 44 Fed. Reg. 67 • Federal Regulations, 25 CFR § 23.1 et seq. • State Statutes • Case Law

Definitions • Indian Child: “any unmarried person who is under age eighteen and is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” §1903 (4) • Indian: “any person who is a member of an Indian tribe, or who is an Alaska Native and a member of a Regional Corporation as defined in 1606 of Title 43.” §1903 (3) • Indian Tribe: “the Indian tribe in which an Indian child is a member or (b) in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts.” §1903 (5)(a) and (b)

Definitions Continued • Parent: “means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established.” §1903 (9) • Indian Custodian: “means any person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody and control has been transferred by the parent of such child.” §1903 (6)

Definitions Continued • Expert Witness • Although this is not defined under ICWA House Report and The Bureau of Indian Affairs has set guidelines for state courts on the characteristics to qualify a witness as an expert under ICWA they are as follows:

Definitions Continued • Qualified Expert Witness • A member of the Indian child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and child rearing practices. • A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and child rearing practices within the Indian child’s tribe

Definitions Continued • Qualified Expert Continued • A professional person having substantial education and experience in the area of his or her specialty • A qualified expert witness is not an expert on ICWA but an expert on the child’s tribe.

Definitions Continued • Extended Family Member: defined by law or custom of the Indian child’s tribe, or in the absence of such law or custom, is a person who has reached the age of 18 and who is the Indian child’s grandparent, aunt, uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or step parent. 25 U.S.C.§ 1903(4)

How To Register • www.accessgenealogy.com • Great Great Great Grandparent is as far back as you can go • The person will need their full name, address, telephone number, birth and marriage (if applicable) certificate • You will need this information for you parents or grandparents • The name of the tribe

Application of ICWA • ICWA applies to Indian children who are members of or are eligible for membership in a Federally Recognized tribe Indian tribe. §1901(3)

FEDERALLY RECOGNIZED TRIBE • In Pennsylvania there are no federally recognized tribes • In Florida there are two federally recognized tribes Seminole Tribe of Florida The Miccosukee Tribe of Indians of Florida • List of Federally recognized tribes see www.indians.org

Application of ICWA continued • The statute applies to child custody proceedings, including foster care placement, voluntary and involuntary termination of parental rights, pre-adoptive placement and adoptive placement of an “Indian Child.” It does not apply to child custody proceedings during the course of a divorce or delinquency proceedings. §1911(a)

Applications of ICWA • It is unclear if ICWA applies to: • Third party custody disputes OR • Step parent adoptions

Applications of ICWA • Note that the burden of proof is on the person asserting the applicability of ICWA

Exclusive Jurisdiction • In child custody proceedings involving an Indian child (foster care, pre-adoptive and adoptive placements, voluntary and involuntary TPRs), an Indian tribal court shall have exclusive jurisdiction. §1911(a)

Exclusive Jurisdiction • The tribal court has exclusive jurisdiction if • The Indian child resides or is domiciled within the reservation of the Indian tribe OR • The Indian child is a ward of the tribal court

Exclusive Jurisdiction • The domicile is based upon physical presence with the intent to remain and is generally that of the parent. See Holyfield case 490 U.S. 30 (1989) • Practice Tip: Domicile should be established as soon as possible

Exception • If the child does not fit one of the definitions for exclusive jurisdiction then the state court and the tribal court have concurrent jurisdiction over dependency and termination proceedings. • If the child is eligible for more than one tribe then it will the tribe where the contact is greater and that is for the state court to determine

Exception • Pursuant to Section 1922, nothing in ICWA shall be construed to prevent the emergency removal of an Indian child from his parent or Indian custodian. Therefore, an Indian child may be placed in shelter care where there is imminent physical damage or harm to the child. However, this section maintains that the authority or agency that conducted the removal shall insure that the placement terminates immediately when such placement is no longer necessary to prevent imminent physical damage or harm to the child.

Continued • Practice tip: The BIA has set forth guidelines and has indicated that an affidavit should be filed with the court if placement is still needed to prevent harm and the tribe does not take jurisdiction.

Transfer of Jurisdiction • In all such proceedings, the court, absent good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon petitionof either parent or Indian custodian or the Indian child’s tribe. Provided that such transfer shall be subject to the declination by the tribal court of such tribe. §1911 (b)

Motion to Transfer • Indian child parent(s), Indian custodian or Indian tribe may all request transfer • The state court MUST transfer jurisdiction unless the parent objects or “good cause is shown to the contrary”

Good Cause • While not defined some factors are: • Untimely Request • Inconvenient Forum • Transfer not in the child’s best interest • Child has had minimal contact with the tribe • Child over 12 and objects • Child over 5 no contact with parents or tribe

Retaining Right to Intervene • Where the proceeding is held in state court, as in the case of declination of jurisdiction by the tribal court, the Indian custodian or tribe retains a right to intervene at any point. §1911(c) • This is different from the motion to transfer

Pending Court ProceedingsNotice • Notice – In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and their right of intervention. §1912 (a) Must be received 10 days before the hearing and Parent/Indian tribe can request a 20 day continuance

Notice Exceptions • If the identity of or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary of the Interior in like manner, who shall 15 days after receipt to provide the requisite notice to the parent or Indian custodian and tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or secretary. Provided that the parent or Indian Custodian or the tribe shall, upon request, be granted up to 20 additional days to prepare for such proceeding. §1912 (a)

Who must Receive Notice • The Parent (s) • Indian Custodian • Indian Child’s Tribe • If the identity cannot be determined then the Secretary of the Interior and the area Director for the BIA

Additional Protections Under Section 1912(b) and (c), ICWA also affords that: - parents must be notified of the right to appointed counsel if they are indigent - right to examine reports or other documents filed with the court with respect to the proceedings

SUMMARY OF NOTICE • Notice must be sent register mail return receipt • Proof of notice should be filed with the court • Notice must be received 10 days prior to hearing • The parent or Indian custodian can request a 20 day continuance

Notice Continued • The BIA needs 15 days prior to the hearing to provide notice to the tribe. • They must be notified of all proceedings and termination • BIA has guidelines of what should be put in the letters. See Sample letters

Remedial Services and Rehabilitative Programs • Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. §1912 (d)

Foster Care Placement • No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including the testimony of a qualified child expert witnesses, 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.§1912 (e) • Note that under §1913(b) “Any parent or Indian custodian may withdraw consent to a foster care placement under State law at any time and upon such withdrawal, the child shall be returned to the parent or Indian custodian.”

Factors to Consider at a Shelter Hearing • Is the child under 18, unmarried, and a member of a federally recognized tribe OR eligible for membership in a federally recognized Indian tribe and the biological child of a member of a federally recognized tribe? • Was the child in the custody of an Indian custodian prior to the hearing? • If an Indian child is the child residing or domiciled on an Indian reservation OR is the child already a ward of the tribal court? • If the Child resides or is domiciled on reservation but is temporarily off the reservation, the court may order an emergency removal from the parent or Indian custodian to prevent imminent physical damage or harm to the child.

Shelter Hearing Cont. • Was proper notice (remember must be certified) and inquiry mailed to ALL tribes in which the child may be eligible for membership, including a family chart or genogram to facilitate the tribe’s membership determination? • If the child’s tribe is not known at this time was written notice sent to the U.S. Secretary of the Interior? • Has the agency made efforts to place the child with extended family, other tribal members, or Indian families? • Is the parent able to understand the proceedings? (remember right to counsel)

Shelter Hearing Cont. • Make sure after the hearing that the agency mails notice of next scheduled hearing, copy of the petition, and advice of rights under ICWA to parent, Indian custodian (if applicable), tribe. Remember this must be sent Registered Mail return receipt.

Placement Priorities under ICWA • A member of the Indian child’s extended family • A foster home licensed; approved, or specified by the Indian child’s tribe • An Indian foster home licensed or approved by an authorized non-Indian licensing authority OR • An institution for children approved by an Indian tribe or operated by an Indian organization which ha a program suitable to meet the Indian child’s needs.

Considerations at a Petition Hearing • Is the child an Indian child under ICWA? • Does the state court lack jurisdiction because the child is already a ward of the tribal court? • Is there a legal basis for court/state intervention? • Did the agency provide remedial services and rehabilitative programs to prevent the breakup of the family • The court must also make specific findings including whether the child is an Indian child under ICWA, specify efforts made to identify tribe, ensure proper notice was sent to all tribes and the Secretary

Continued • Specify if the child is already a ward of the tribal court • Specify if the child was in the custody of a Indian custodian at the time of removal • Make sure all proper notice sent to Tribe and Indian custodian (if applicable) registered mail return address • Ascertain if the tribe seeks to intervene and grant request if more than one tribe ascertain which tribe will be identified for ICWA purposes • If the tribe, parent, or Indian custodian request an additional 20 days to prepare for hearing this should be granted.

Continued • If court declines to transfer the case, specify whether either parent vetoed the transfer, the tribal declined to accept jurisdiction, or the reasons if any why there is good cause not to transfer the case to tribal court • Remember parents should be provided a lawyer if they cannot afford one.

Additional Considerations at Disposition • If the agency is recommending foster care an affidavit documenting active efforts should be submitted it should include: • Description of efforts made to keep family together • Efforts to find a placement within the Indian community • Visits with extended family or other tribal members • Agency plan to coordinate with child’s tribe and family to identify significant cultural events and arrange for child’s attendance • These considerations continue during Permanency Review Hearings

Additional Considerations • The tribe should continue to be notified of all subsequent hearings via registered mail/return receipt • The agency should continue efforts to locate extended family

Termination of Parental Rights • No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including the testimony of qualified expert witnesses, 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. §1912 (f)

Voluntary TPRs Under ICWA • In a voluntary TPR, any consent given prior to or within 10 days of birth of the Indian child shall not be valid. The consent shall not be valid unless it is executed in writing and record before a judge of a court of competent jurisdiction and accompanied by a certificate that illustrates that the terms and consequences of the consent were explained in detail and understood. §1913 (a) • Note that under §1913(c), in any voluntary TPR or adoptive placement of an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, at which time the child shall be returned to the parent.

Termination Considerations • Make sure notice was sent to the tribe by registered mail return receipt • Notice provided to parents or Indian custodian registered mail • Were active efforts (this is not defined and it is not clear if it is similar to reasonable efforts) made to provide remedial services and rehabilitative programs designed to prevent the breakup of the family • There is no exception to the state being relieved from providing active efforts (ASFA). Only two States South Dakota (ICWA trumps ASFA) and Alaska (ASFA trumps ICWA) have addressed the conflict • Whether there is evidence beyond a reasonable doubt including testimony of an expert witness, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child • The standard is beyond a reasonable doubt

Vacating Adoption Decree • After the entry of a final decree of adoption of an Indian child in any State court, the parent may withdraw consent thereto upon the grounds that consent was obtained through fraud or duress and may petition the court to vacate such decree. §1913(d) • The statute provides that under these circumstances, an adoption that has occurred in two years or less, where consent was obtained through fraud or duress, may be vacated and the child shall be returned to the care of the parent or Indian custodian.

Adoptive Placement Preferences §1915 (a) Preferences for Adoptive Placements: • A member of the child’s extended family • Other Indian families • Other members of the Indian child’s tribe

Foster Care or Pre-adoptive Placement Preferences §1915(b) • Preference for Foster Care or Preadoptive 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 foster home licensed or approve by an authorized non-Indian licensing authority • An institution for children approved by an Indian tribe or operated by an Indian organization that can meet the Indian child’s needs.

Tribal Preference • The tribe may establish a different order of preference by resolution. 25 U.S.C.§ 1915(c) • If they do establish a different order of preference make sure it is the least restrictive placement

Understanding ICWA