THE INDIAN CHILD WELFARE ACT

THE INDIAN CHILD WELFARE ACT Florida Practice and Policy with Guidelines for Best Practice Department of Children and Families Office of Child Welfare

Why “ICWA”? Knowledge of the Indian Child Welfare Act is essential for Child Welfare Legal and Judiciary Mental Health Foster Care and Adoptions Caregivers

Training Session Format This training is a 3.0 hour session. There will be one 15 minute break after the first 1.5 hours. This curriculum has been approved by the Florida Bar for 3.5 hours of Continuing Legal Credits.

OBJECTIVES Participants will: • Be able to discuss the unique relationship between the federal government and the Indian Nations and to explain the concept of tribal sovereignty • Define two key terms: cultural assimilation vs. forced cultural assimilation anddisplacement • Have a working knowledge of the essential mandates and protections of the Indian Child Welfare Act • Learn the historic basis for the Indian Child Welfare Act • Develop the ability to apply the spirit and intent of the Act to child welfare practice in the field • Display improved competency in casework and field practice with American Indian/Alaskan Native cultures • Become familiar with information regarding the two federally recognized Florida tribes and with ICWA practice and policy specific to Florida • Develop an awareness of American Indian/Alaskan Native population statistics

“...that there is no greater resource that is more vital to the continued existence and integrity of Indian tribes than their children…” The Congress hereby declares that it is the policy of this Nation to protect the best interest of Indian children and to promote the security and stability of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families…

Indian Child Welfare Act November 8, 1978 What guides our ICWA work in Florida? • Section 39.012, Florida Statute, (rule making authority) • State-to-nation agreements with Florida tribes • Section 65C-28.013, Florida Administrative Code • Core training for all child welfare and legal staff (in pre-service) • Ongoing in-service technical assistance opportunities • Electronic systems that track ICWA data for federal and other reporting (Florida Safe Families Network)

Federal Law Related to Indian Nations A unique body of federal legislation that specifically addresses issues relating to American Indian tribes and defines jurisdictional and other issues on such topics as: • Criminal law • Natural resources, i.e., land, water, hunting, fishing, mining rights • Child welfare and other social welfare issues • Gaming This legislation is based upon the unique political relationship that exists between the Congress of the United States and the Indian Nations and it continues to be influenced and re-shaped by Supreme Court decisions that interpret the concept of tribal sovereignty.

The Foundations of Federal Law Relating to Tribes and the Indian Child Welfare Act • “Indian tribes are sovereign entities whose existences predate the ratification of the U. S. Constitution. The Supreme Court long ago recognized tribes as ‘domestic dependent nations’ with a unique relationship to the federal government.” • “Indian nations have long been recognized as retaining the inherent authority to regulate domestic relations among their members.” • “…ICWA is simply a realization and a codification of the legal landscape that existed before its passage.” -The Indian Child Welfare Act Handbook

“SOVEREIGNTY” DEFINED: The supreme, absolute, and uncontrollable power by which any independent state is governed; supreme political authority; paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power, from which all specific political powers are derived, the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or state, which is sovereign and independent.. -Black’s Law Dictionary

Defining American Indian Tribal Sovereignty and Congressional Jurisdiction over Indian Nations • The Commerce Clause of the U.S. Constitution (Article I, Section 8, Clause 3) is the primary source of federal authority regarding Indian tribes and has been the vehicle used by Congress to recognize and define tribal sovereignty. In addition, the Supreme Court has ruled that Congress, as the legislative body of the nation, has an intrinsic power to conduct business with and enact legislation concerning the Indian Nations that reside within the borders of the United States.* • “The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” -U.S. Constitution

The Two Theories of Tribal Sovereignty • The [Indian Nations] have inherent sovereignty that predates the “discovery” of the Americas. • The [Indian Nations] have only those attributes of sovereignty that Congress bestows upon them. Historically, the Supreme Court has relied on these two views in defining tribal sovereignty cases* *Philip J. Prygoski From Marshall to Marshall: The Supreme Court’s changing stance on tribal sovereignty http://www.abanet.org/genpractice/compleat/f95marshall.html

The “Marshall Trilogy”:Named for Chief Justice John Marshall, these Supreme Court decisions further defined the doctrinal basis for interpreting Federal Indian Law and the concept of tribal sovereignty. • Johnson v. McIntosh (21 U.S. (8 Wheat.) 543 (1823)): Tribes cannot convey lands to private parties without the consent of the federal government. Origins of the “trust” doctrine and the authority of the federal government and Congress over Indian nations. • Cherokee Nation v. Georgia (30 U.S. (5 Pet.) 1 (1831)): Established tribes as “domestic dependent nations”, not foreignnations, and established the “trust relationship” between tribes and the federal government. Tribes are “nations within a nation” under the protection of the United States. The guardian/ward relationship is established. This decision found that the Cherokee were not entitled to bring suit as a foreign nation or as a state. • Worcester v. Georgia (31 U.S. (6 Pet.) 515 (1832)): Affirmed the federal government's exclusive right to treat “the Indian nations…as distinct, independent, political communities”outside the reach of the states. The case involved a missionary (Worcester) to the Cherokees who failed to obtain a license as required by a Georgia statute. The Supreme Court ruled that, since the Cherokees must be regarded as an independent nation, the Georgia law violated the Commerce Clause of the Constitution.

Principles of Federal Law and the Indian Child Welfare Act • “Even before the enactment of ICWA, the courts had acknowledged that Indian tribes, not the states, could regulate marriage among tribal members; adoption of Native American children; divorce and property distribution among Native Americans, and the rights and privileges of children.” • “…as a general principle, states are preempted from exercising any authority over Indian tribes if that exercise of authority clashes with federal authority.” - B.J. Jones The Indian Child Welfare Act Handbook

North American History and the Social and Political Framing of ICWA • The Indian Child Welfare Act is, in part, a response to hundreds of years of political and social policy that resulted in the decimation of the American Indian people and their culture. • Repeated efforts and policies of forced cultural assimilation, displacement, and the unwarranted removal of Indianchildrenfrom their families by states, prompted Congress to enact legislation that would establish minimum federal standardsfor the removal of American Indian children from their families.

U.S. Department of the InteriorThe Bureau of Indian Affairs • The “BIA” was created in 1824 as a part of the U.S. War Department and transferred in 1849 to the Department of the Interior. It is responsible for overseeing the protection of American Indians and acts as a trustee over American Indian lands and funds, promotes agricultural and economic development, provides health, education and social services programs, and reclamation projects. • There are 12 regional BIA offices in the United States. • Florida is in the Eastern BIA Region. • Our BIA Regional Office is located at: 545 Marriott Drive, Suite 700, Nashville, Tennessee 37214 Telephone: 615-564-6740 Fax: 615-564-6547 • Our current BIA liaison is Gloria York, MSW.

AMERICAN INDIAN POLICY AND ICWA

THE COLONIAL PERIOD1492 - 1776 • “Discovery of the New World” • Conquest of the Americas by Spain, France, England • Objectives include military power and domination, acquisition of wealth and territory, religious conversion • Results are domination, subjugation, enslavement and removal of existing inhabitants • Indigenous people later are regarded as independent “nations” and negotiated with European powers by treaty • Effects of European colonialism on indigenous people • Loss of natural resources, cultural erosion and forced assimilation • Decimation of indigenous populations through war, exploitation and disease • from over 5 million in 1492 to 237,000 in 1900, back to over 2 million in 2000

Displacement and AssimilationThe Dismantling of a People The most effective way to divest a nation and a people of their sense of unity, of a common purpose, and of their unique, historical connections, is to strip them of their culture, to destroy their collective identity, and to compromise and disengage their family and community systems. • Historic Precedents: The Scottish Uprising of 1745 and the English Act of Proscription: After the Battle of Culloden (1746), Scots are forbidden (outlawed) by the English to play bagpipes, wear kilts or tartan plaids, or to speak Gaelic. There is an effort to dismantle the Highland clan system, and any attributes of Highland culture are stripped to discourage future rebellion and to promote assimilation to the English culture and subjugation to English rule, to remove the will to resist. The ultimate goal was to destroy any sense of Scottish nationalism or unity, and to end the Scots’ will to continue the fight for independence (forced cultural assimilation). • The “Clearances” forcibly removed Scottish clans from ancestral lands (displacement).

From The Act of Proscription, August 1, 1746: • "That from and after the first day of August, One thousand, seven hundred and forty-seven, no man or boy within that part of Britain called Scotland, other than such as shall be employed as Officers and Soldiers in His Majesty's Forces, shall, on any pretext whatever, wear or put on the clothes commonly called Highland clothes (that is to say) the Plaid, Philabeg, or little Kilt, Trowse, Shoulder-belts, or any part whatever of what peculiarly belongs to the Highland Garb; and that no tartan or party-coloured plaid of stuff shall be used for Great Coats or upper coats, and if any such person shall presume after the said first day of August, to wear or put on the aforesaid garment or any part of them, every such person so offending….shall be liable to be transported to any of His Majesty's plantations beyond the seas, there to remain for the space of seven years. "

THE INDIAN REMOVAL PERIOD 1776- 1830 PRESIDENT ANDREW JACKSON, 2nd Annual Address to Congress, 1830.“[Removal] will separate the Indians from immediate contact with settlements of whites; free them from the power of the States; enable them to pursue happiness in their own way and under their own rude institutions; will retard the progress of decay, which is lessening their numbers, and perhaps cause them gradually, under the protection of the Government and through the influence of good counsels, to cast off their savage habits and become an interesting, civilized, and Christian community.”

THE REMOVAL PERIOD continued: • Indian Removal Act of 1830 – Jacksonian Policy • Federal policy moved tribes westward to make room for expansion of European settlement on the eastern seaboard, reservations established; • The “Trail of Tears”: Southeastern tribes forcibly moved to the Oklahoma Territory west of the Mississippi River and former Indian lands in the east are redistributed to European settlers via land lotteries. • Tribes “relocated” to Oklahoma by the Removal Act of 1830 include the Cherokee, Chickasaw, Choctaw, Creek, and Seminole. • A small group of Cherokee remained in the Smoky Mountains and a similar group of Seminole remained in the Everglades. 4000 Cherokee died on the way to Oklahoma from disease, starvation and exposure.

“MANIFEST DESTINY”RESERVATIONS AND TREATIES 1831- 1880 • 1840’s saw more continental expansion westward; tribes again displaced • War with Mexico; growing conflicts with western Indian Nations • More reservations created, moved and restructured; treaty violations • Continued “removal’ of indigenous people from their ancestral lands; constant displacement and friction with new settlers and the military • Inability of tribes to survive without game because the continued encroachment of settlers impacted hunting and fishing lands; tribes were “hunter/gatherers”; starvation and inability to sustain their families • The loss of natural resources that ensured survival of the tribes brought hunger and starvation, loss of shelter and the traditional means of providing for their families; reservations were impoverished and disease ridden • Military actions against the tribes developed causing confinement to reservations, imprisonment, transfer of Indian prisoners to prisons in the east, including Florida (Fort Marion and similar forts/prisons) • No treaties after 1871

ASSIMILATION AND INSTITUTIONALIZATION1840 - 1980 • Mission Schools • Boarding Schools • Fort Marion, Florida • Carlisle Indian School • Assimilation Policy • Forced displacement • Destruction of longhouses • Families separated by adoption policies and programs (American Indian Adoption Project)

Captain Richard Henry Pratt’s “Experiment”Prisoners at Fort Marion, Castillo de San Marcos, St. Augustine, Florida, with Captain PrattMarch/April 1878

The Assimilation Policy Why take the children? “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 how to abandon the pathway of barbarism and walk with a sure step along the pleasant highway of Christian civilization .... They must be withdrawn, in their tender years, entirely from the camp and taught to eat, to sleep, to dress, to play, to work and to think after the manner of the white man.” - Commissioner of Indian Affairs Annual Report, H.R. Exec. Doc. No. 50-1, at XIX (1888).

MISSION AND BOARDING SCHOOLS Tulalip Reservation, Washington Tulalip Mission School students with the school ‘s founder, Father Chirouse Circa 1865 Tulalip School founded 1857

A group of Sioux children upon arrival at Carlisle Indian Industrial School, photographed October 5, 1879. Captain Pratt is on the far left. -National Archives and Records Administration

Three Pueblo children from San Felipe, New Mexico upon arrival at Carlisle Indian Industrial school, and afterward. They are Sheldon Jackson (Watte), John Shields (Krise-te-wa) and Harvey Townsend (Hem-ri-ti) -National Archives and Records Administration Before and after…

Student body at Carlisle Indian Industrial School, Pennsylvania circa 1905. -National Archives and Records Administration

Bureau of Indian Affairs Indian Boarding Schools “In 1971, 17 percent of Native American school-age children were removed from their homes to attend Bureau of Indian Affairs (BIA) boarding schools, where they were oftentimes isolated from their native families and instructed by teachers who had very little understanding and appreciation of the children’s native languages and traditions. In many of these boarding schools children were punished for speaking their native languages or practicing their religious beliefs.” -B. J. Jones The Indian Child Welfare Act Handbook

Chilocco Indian SchoolOklahoma 1882 - 1980

THE ALLOTMENT ERA1880 - 1930 1887 - The General Allotment Act (“The Dawes Act”) • Focused specifically on breaking up reservations by granting land allotments to individual Native Americans. • The reasoning was that if a person adopted non-Indian clothing and ways, and was responsible for a farm, assimilation of American Indians into the dominant population would be enhanced and tribes would become self supporting on the reservations.

THE ALLOTTMENT ERA, continued • Tribal members were registered and documented on tribal rolls (called “base rolls”) and registered with the Bureau of Indian Affairs (sometimes referred to as “Dawes Rolls") in order to establish eligibility for land allotments. • Tribal lands were often mountainous or desert and not able to be used for agricultural purposes. • The government sold “surplus” Indian lands to non-Indians in violation of earlier treaties that held reservations in “trust” to Indians only.

THE INDIAN REORGANIZATION ACT 1930 - 1950 1934 - The “Wheeler-Howard Act” • Attempt by the federal government to secure new rights for American Indians on reservations. • Main provisions were to restore to management of tribal assets (mostly land); to prevent further depletion of reservation resources; to build a sound economic foundation for the people of the reservations; and to return local self-government on a tribal basis. Tribal Councils were established. Many tribes now have a Tribal Council and a Tribal Council Chairman rather than the traditional tribal “chief”.

NATIVE AMERICAN TERMINATION ERA 1950 - 1970 • U.S. policy toward American Indians during the 1950s and 1960s. • Commissioner of Indian Affairs John Collier's policy of cultural pluralism and the ‘Indian New Deal” (1934-1945), resulted in legislation that sought to "emancipate the Indian" by terminating all federal ties and benefits to Indian communities and withdrawing federal support for tribal governments. • 1953 - statutes called for the preparation of a final roll of tribal members, the distribution of tribal assets to members, and the removal of Indian lands from federally protected trust status.

SELF DETERMINATION1970 to present • By the 1950’s, the tribes had lost 50 percent of their children. • The Child Welfare League of America (CWLA) through the Indian Adoption Project (1958 – 1967), implemented a national project that removed children from Indian families for adoption by non-Indians. The CWLA later issued a public apology for their actions. • The Civil Rights Movement of the 1960’s initiated a climate of social and political change nationally. • The Indian Child Welfare Act drafting and hearings take place 1972-1976, and ICWA passes in 1978.

The Survival of a Culture and a People “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.“ Mr. Calvin Isaac, Tribal Chief of the Mississippi Band of Choctaw Indians and representative of the National Tribal Chairmen's Association (1978 Hearings)

Understanding and Respecting History and Tradition in Work with American Indian Tribes

Tribes are highly unique in their histories, traditions and cultural practices; however, some general statements can be made with regard to practices and viewpoints held in common by the America Indianpopulation: • Historic distrust of non-Indians and the dominant culture • Life view is cyclical as opposed to linear, in keeping with nature, time is fluid • Holistic view of life, problems viewed as related to an overall lack of harmony • Spirituality, ancestors involved in their lives, reverence for sacredness of nature, places, the environment • Importance of the group above the individual, is seen as necessary to survival, and abhor turmoil or lack of harmony in the group as it threatens the survival of the group • Value age and wisdom (Elders) more than youth, appearance, the transitory • Respect, avoiding the appearance of being aggressive, interfering or meddlesome • Tribal clan systems involve the concept of “extended family”, a child is the responsibility of the tribe and the elders, the tribe is extended family. • Elders and extended family often assume responsibility for child rearing based upon traditional tribal systems • Child rearing practices involve “story-telling” and non-corporal forms of discipline • Pride, reluctance to ask for help or to ask questions • Importance of protocol in social interaction, hospitality, sharing of resources • Women and children are honored and many tribes are matriarchal

The Indian Child Welfare Act 1901. Congressional Findings • Establishes jurisdiction and the intent of the Act • Defines and explains the unique relationship between tribes and Congress • Describes the United States as a “trustee” in protecting Indian children • Addresses the jurisdiction of the States with regard to tribes

1902. Declaration of Policy Statement that it is the policy of this Nation to protect Indian children and to promote the stability and security of American Indian families by: • Establishes minimum Federal standards for removal of Indian children from their families; • Establishes Federal standards for the placement of Indian children in culturally appropriate foster or adoptive homes and; • Provides assistance to the tribes for the operation of family services programs

1903. Definitions Key definitions include: TYPES OF CHILD CUSTODY PROCEEDINGS TO WHICH ICWA APPLIES: • Foster care • Any out-of-home care placement including relatives and non-relatives when the parent cannot have a child returned upon demand (shelter) • Termination of Parental Rights • Pre-adoptive placement • Adoption

Definitionscontinued EXTENDED FAMILY MEMBER: shall be as defined by the law or custom of the Indian child’stribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent Note: Some tribes do not have, for example, a word or concept for “cousin”. The tribe itself is the extended family or children are placed within certain subgroups (clans) within the tribe. There are, in addition, important differences in child rearing in a matriarchal system.

Definitions continued INDIAN CHILD: Any unmarried person under the age of eighteen who is either: (a) A member of an Indian tribe, or (b) Is eligiblefor membership* in an Indian tribe AND is the biological child of a member of an Indian tribe * Tribal membership can only be determined by the tribe in which membership is claimed, and their decision is conclusive.

Definitions continued INDIAN CUSTODIAN: means any Indian 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;

Definitions continued INDIAN TRIBE: • Any Indian tribe, band, nation or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of the Interior] because of their status as Indians. • Any Alaska Native Village as defined in 3 (c) of the Alaska Native Claims Settlement Act (85 Stat. 688,689), as amended • Eligible Tribes and Villages are published annually in TheFederal Register. • ICWA is not applicable to Native Hawaiians, Canadian “bands”, or Central or South American tribes, including Mexican tribes, nor to state-only recognized tribes, private tribal corporations or informal tribal groups not formally recognized by the Department of the Interior.

Definitions continued PARENT: 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 Unwed fathers where paternity has not been acknowledged or established are excluded

Definitions, continued TRIBAL COURT: A court with jurisdiction over child custody proceedings and that is either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian tribe, or any other administrative body of a tribe vested with authority over child custody proceedings.

Subchapter I – Child Custody Proceedings 1911. Jurisdiction • Exclusive jurisdiction of tribes over states (on reservation) • Transfer of judicial proceedings to the tribe by the state (off reservation) and declination by tribal court. • State court proceedings and tribe’s or Indian custodian’s right to intervene at any time in the proceeding • Full faith and credit to public acts, records, and judicial proceedings of Indian tribes by the states and the federal government

THE INDIAN CHILD WELFARE ACT