Jill E. Tompkins (Penobscot) Clinical Professor of Law Director, American Indian Law Program University of Colorado Law

1. Better ICWA Practices: Recommendations for Improving Compliance with Tribal Notice and Placement Preferences Jill E. Tompkins (Penobscot) Clinical Professor of Law Director, American Indian Law Program University of Colorado Law School

2. Where are the Indians?

3. Who are you? • Caseworker • County District Attorney • Respondent’s counsel • Judge • Other

4. Experience with ICWA cases How many ICWA cases have you been involved with? • None • Less than 3 • More than 3, but less than 10 • More than 10 • What’s ICWA?

5. Historic & Intergenerational Trauma • Indian wars (Civil War veterans) • Massacres (Sand Creek, many others) • Trail of Tears & Broken Treaties • Wholesale loss of Indian land • Decimation of Indian culture and government • First boarding school opened after Custer’s defeat

6. Philosophy of Boarding Schools “Kill The Indian, Save the Man . . .” Gen. Richard Henry Pratt Carlisle Indian School Student Body Pratt was described as, “The red man's Moses" and “An honest lunatic.”

7. Start with the children . . . Assimilation: Road to Cultural Genocide “In the White Man’s Image”

8. “Savages” Into the Image of the White Man • Changed their names • Hair cut short • Prohibited to speak Native languages • Christianity forced upon them, Native religion suppressed • Stripped of traditional clothing; force to wear uniforms • Raised under strict military discipline • Under constant surveillance • Neglect (starvation) • Physical abuse • Sexual abuse “Civilizing the Indian”

9. Navajo reservation(1971) Bureau of Indian Affairs Boarding School Population

10. Still Here . . . Riverside Indian School, Present Day (Longest continually occupied) Riverside Indian School, Anadarko, OK (1871)

11. Indian child removal crisis The “wholesale removal of Indian children from their homes . . . is perhaps the most tragic aspect of Indian life today. . .” --1974 Senate Committee Hearing

12. Pre-ICWA Indian child stats Which of the following is true? • 25 to 35% of all Indian children were being removed from their families • 85% of removed Indian children were placed in non-Indian homes • In Minnesota, 1 in 4 Indian children under the age of one were removed and adopted by non-Indians • All of the above

13. South Dakota (1967-68)

14. 16 State Survey(1969) Foster care placement of Indian Children

15. Adoptions of Indian children under the age of one year Minnesota(1971-1972)

16. Causative Factors: Massive Involuntary Separations • Standards for removal • Very few (less than 1% in North Dakota) for physical abuse • 99% of cases based on “neglect” or “social deprivation” • Misunderstanding of Indian Extended Family Dynamics • Leaving a child with relative seen as irresponsible or neglectful • Ignorance of cultural traditions (e.g. grandparents to raise child as the norm)

17. The DeCoteau Case • South Dakota Dept. of Public Welfare petitioned to terminate Sisseton-Wahpeton mother’s rights • Grounds: 4 year old son sometimes left with 69-year old great-grandmother • Caseworker admitted child was well-cared for • But added that the great-grandmother “is worried at times”

18. Grounds for Initiating Proceedings • Ignorance of child rearing practices • Child seen as “running wild” • Parents seen as being “permissive” • Different but effective way of parenting as a community • Reservation conditions • Poverty, poor housing, overcrowding, lack of modern plumbing, etc. • Tribes forced onto reservations at gunpoint, prohibited from leaving without a permit. • Now Indian parents told that they live in a place unfit to raise their children

19. Saving Blossom • Blossom’s mother asked her aunt to take her from Rosebud Reservation to California • Mother was to follow • State tried to use poverty against the mother • Week after Blossom arrived, social workers placed her in a pre-adoptive home • No evidence mother was unfit • Social workers asserted that an Indian reservation was an unsuitable environment and the pre-adoptive parents could financially provide a superior home and way of life • Counsel was able to return Blossom to her mother

20. Not good enough • Judges also lacked cultural knowledge • Lacked a clear standard of abuse or neglect • Discriminatory standards made it virtually impossible for Indians to be foster or adoptive placements • Modest means but could still provide excellent care • Lack of licensed Indian foster homes still exists in Colorado and nationally • Non-Indians still furnish almost all Indian child placements

21. Taking Children Without Due Process • Neither Indian parents or children represented by counsel • Rare to have expert witness testimony • Often used voluntary waivers so that Indian parents could obtain welfare • Coerced waivers of custody later used to support termination petition • BIA & HEW gave economic incentives to state agencies for foster care • In Wisconsin (1969), Indian children 70% of foster care placements but only 8% of adoptions (payments stop)

22. Sadly, some things have not changed . . . National Public Radio: “All Things Considered” Native Foster Care: Lost Children, Shattered Families Recent 3-part investigation in South Dakota http://www.npr.org/2011/10/25/141672992/native-foster-care-lost-children-shattered-families

23. 2011 South Dakota Today

24. 2011 South Dakota Today Actually worse now than pre-ICWA!

25. 2011 New Mexico Disproportionality • 18th in the Nation • 10.3% of child population • 9.8% of foster care • South Dakota, 6th • Minnesota, 1st • Nationally, American Indian children are 1.2% of general population but 2.6% of foster care population

26. Why Should We Care About History? “Lost Birds” Impact on Parenting Francesca “Split Feather” Syndrome

27. “Most of the people who were being given Indian children were well-meaning, some were not.” “I have heard it said that an Indian child being raised by a non-Indian is like a swan trying to raise an eagle.” --Tina Albert

28. Split Feather Syndrome Long-term psychological damage suffered by an Indian child from placement in a non-Indian foster or adoptive home. Study of 20 Indian (First Nations) adult foster children or adoptees. By Carol Locust.

29. Symptoms • Depression • Alcoholism & substance abuse • Aggressive behavior • Poor self-esteem (discrimination) • Lack of purpose in life • Poor educational and work performance • Lack of connection and place in the world • Poor interpersonal relationships

30. Treatment? • 19 of 20 were repatriated • Education and employment greatly improved • Personal lives improved dramatically

31. Is this an Indian child? The father of girl who is the subject of a D & N proceeding is of Navajo ancestry. Both the father’s parents are full-blooded. His daughter’s mother is non-Indian. Navajo law states that a child who is born to a member and has ¼ Navajo blood is a member and eligible for enrollment. Is this an “Indian child”? Yes No

32. When is the job done? At the first interview with the parents, there’s no indication that the child is an Indian child. Is that all the caseworker must do to comply with ICWA? • Yes • No

33. Follow up? The parent in a D & N case denies any Indian heritage. Caseworker hears from a neighbor that the parent previously mentioned family living on a South Dakota reservation. Must the caseworker follow up? • Yes • No

34. Exercise 1Maybe I am Cherokee . . .

35. New American Indian/Alaska Native Indian Child Welfare Act Assessment FormJDF Forms 566, 567 & 568

36. It is the tradition in the child’s tribe that if a parent can’t care for the child the maternal relatives must. Child has a maternal great-aunt (67) and a paternal uncle (36) who want placement. Where should the child be placed? • Uncle • Great-aunt

37. Record of Placements Does your office/agency maintain a clear separate record of a child’s every placement? • Yes • No • Not applicable

38. Exercise 2Do we have to follow ICWA now ?

39. How hard is it? How difficult have you found it to locate Indian foster homes in New Mexico? • Never had to try • Not very difficult • Very difficult • Nearly impossible

40. Disrupt the adoption? Must a court invalidate an adoption of an Indian child that has been in place for over a year if it is established that the tribe did not receive notice of the motion to terminate parental rights? • Yes • No

41. Cultural connectedness agreements

42. You & CCA’s Which of the following is true for you? • I’ve been involved in a case where a CCA was used • Never had a case involving a CCA but would consider in future • I think CCA’s are a bad idea

43. What if ? Jill and Uncle Dale Lolar at a scholarship run on Indian Island, Penobscot Indian Nation reservation, Maine

44. The endWoli wonjill.tompkins@colorado.edu(Please return clickers.)