History and Importance of Government to Government in ICW Proceedings

1. Association on American Indian Affairs History and Importance of Government to Government in ICW Proceedings Jack F. Trope Executive Director

2. Background • Indian Child Welfare Act (ICWA) enacted because large numbers of Native children being removed from families and placed in non-Indian foster care and adoptive homes. • AAIA studies in 1969 and 1976 showed that foster care and adoption rates for Native children far exceeded that for non-Native children and that most of these children were placed in non-Indian homes. Association on American Indian Affairs

3. Background (cont.) Foster care rates ranged from 2.4 times to 22.4 times (South Dakota) the non-Indian rate and non-Indian placements ranged from 53% to 97%. Adoption rate – 8X that of non-Indian children with 90% placed in non-Indian homes. Association on American Indian Affairs

4. Background (cont.) In Washington State, adoption rate was 18.8 times the non-Indian rate – the highest in the country 69% were placed in non-Indian adoptive homes Association on American Indian Affairs

5. Overview (cont.) • Congress found this was not in the best interests of Indian children – that it was in the best interests of Indian children to maintain a relationship with the tribe. • Congress was concerned about not only impact on children and families, but also the impact upon the tribes and long-term tribal survival Association on American Indian Affairs

6. Overview (cont.) • “No resource that is more vital to the continued existence and integrity of Indian tribes than their children.” • “Bill is directed at conditions which threaten the future of American Indian tribes.” Association on American Indian Affairs

7. Overview (cont.) • Found that large part of problem was the failure of states to recognize the importance of tribal relationships and the cultural and social standards in tribal communities. • “State courts and agencies share a large part of the responsibility for the crisis.” Association on American Indian Affairs

8. Overview (cont.) Congress was very concerned that “there are no requirements for responsible tribal authorities to be consulted about or even informed of child removal actions by nontribal government or private agents.” Association on American Indian Affairs

9. ICWA Legislation - 1978 • Primary mechanisms used by ICWA was to “curtail state authority” and recognize “tribal authority” • Best interests of child that its relationship with the tribe be protected. Association on American Indian Affairs

10. ICWA Legislation: Tribal authority and interest Exclusive tribal jurisdiction over Indian children resident or domiciled on the reservation (recognizing pre-existing authority) Presumptive transfer of off-reservation cases to tribal court, absent parental veto or good cause Association on American Indian Affairs

11. ICWA: Tribal authority and interest (cont.) • Tribes have right to receive notice of involuntary state child custody proceedings involving their children • Tribal right to intervene in state court proceedings • Tribal authority to set placement preferences binding on state court • Full faith and credit required for tribal court decisions Association on American Indian Affairs

12. ICWA: Tribal authority and interest (cont.) • Tribes determine who is covered by the Act through their inherent authority to determine tribal membership (definition of “Indian child”) • Tribal right to intervene and application of the placement preferences applies even in voluntary proceedings because the tribe and child have an interest in maintaining ties independent of the parents’ interests. Association on American Indian Affairs

13. Curtailing state authority • Establishes stringent substantive standards for the removal of Indian children and for termination of parental rights • Overrides state law standards. • Requires active efforts to keep families together Association on American Indian Affairs

14. Curtailing State Authority (cont.) • Mandates preferential placement with extended family and other Indian/Alaska Native families, absent good cause to the contrary, for both foster care and adoptive placements. • Requires states to apply the cultural and social standards of the American Indian community. Association on American Indian Affairs

15. Government to Government Relationship between States and Tribes - ICWA 25 U.S.C. 1919 – authorizes agreements between States and Indian tribes respecting the care and custody of Indian Children Association on American Indian Affairs

16. Government to Government Relationship between States and Tribes – ICWA (cont.) Agreements may provide for orderly transfer of jurisdiction on a case-by-case basis and may provide for concurrent jurisdiction as between tribes and states. Association on American Indian Affairs

17. Government to Government Relationship between States and Tribes – ICWA (cont.) State of Washington signed landmark section 1919 agreement with tribes in 1987. Perhaps the most comprehensive agreement ever signed. Association on American Indian Affairs

18. Government to Government Relationship between States and Tribes – ICWA (cont.) Agreement provides for extensive cooperation between Tribes and States and much of the agreement has been incorporated into State regulations and policies. Association on American Indian Affairs

19. Government to Government Relationship between States and Tribes – Title IV-B Federal Child Welfare Services program – State plans must include a description of the specific measures taken by the State to comply with ICWA, developed after consultation with Tribes – 42 U.S.C. 622(b)(9). Association on American Indian Affairs

20. Government to Government Relationship between States and Tribes – Title IV-E Title IV-E – Foster Care and Adoption Assistance Program – 42 U.S.C. 671(a)(32) – 2008 law – “Fostering Connections” Act - State must negotiate in good faith with Indian tribe to develop an agreement with the State to administer in whole or in part the Title IV-E program. Association on American Indian Affairs

21. Government to Government Relationship between States and Tribes – Title IV-E (cont.) Agreement may include: • Foster care maintenance, adoption assistance, and kinship guardianship payments • Access to resources for administration, training and data collection Association on American Indian Affairs

22. Government to Government Relationship between States and Tribes – Title IV-E (cont.) “Fostering Connections” law also permits Tribes (for the first time) to apply directly to the federal government to run the program. – 42 U.S.C. 679c Association on American Indian Affairs

23. Government to Government Relationship between States and Tribes – Title IV-E (cont.) Even if the tribe decides to apply for direct funding, still important role for States • Cross-system coordination • Hold harmless provisions • Transfers of jurisdiction Association on American Indian Affairs

24. Government to Government Relationship between States and Tribes – Title IV-E (cont.) • Tribal Service Area may extend beyond reservation boundaries • Training • State match • Contracting between Tribes and the State Association on American Indian Affairs

25. Government to Government Relationship between Federal Government and Tribes Primary government-to-government relationship – based upon the Constitution, treaties Places a trust relationship upon the federal government Executive Order 13, 175 Individual agency consultation policies Association on American Indian Affairs

26. Government to Government Relationship between Federal Government and Tribes - ACF Recognizes government-to-government between ACF and tribes Emphasizes importance of States and tribes working collaboratively Association on American Indian Affairs

27. Conclusion Federal child welfare policy emphasizes a strong and collaborative relationship between States and tribes on a government-to-government basis Not in lieu of the federal relationship but in addition to that relationship. Association on American Indian Affairs