ICWA AT 30: ASSESSING THE PAST AND FUTURE

1. ICWA AT 30: ASSESSING THE PAST AND FUTURE BJ Jones Chief Judge- Sisseton-Wahpeton Oyate, Prairie Island Indian Community Jones@law.und.edu

2. What’s This Guy Going to Talk About? • Look at the positive impacts of ICWA over the past 30 years • Look at what has not worked and possibly why • Examine the future and what potentially is in store for ICWA • How we can all assure a brighter future for native children

3. Impact of ICWA- 30 year legacy • Expansion of tribal sovereignty by creation of tribal justice systems • Substantial decrease in adoptions of Indian children into non-Indian homes • Many Lost Birds have returned home to benefit their tribal communities • Increased communication between state and tribal leaders • Tribal nations have become more sovereign by providing for their children • We have won the only US Supreme Court decision and we have fought further US Supreme Court review of constitutional issues

4. Our Disappointments • Lack of direct funding, especially IV-E funding, to tribal programs • Disproportionate numbers of native children in foster care- Why? • Creation of judicial exceptions to ICWA- Existing Indian family exception, using best interest of the child as basis for denying transfers, diluting qualified expert witness requirement • Tribal child welfare programs that emulate state programs because of funding issues

5. EMERGING ISSUES • Impact of psychology on Indian families- Increasing tendency to diagnose native children with mental illnesses and concomitant lack of tribal resources to respond • According to recent NY Times series of articles, diagnoses of children with mental health problems have tripled in 10 years (bipolar disorder e.g increased five-fold over last 10 years) • Diagnoses of Indian children have increased even more, sometimes related to historical trauma and oftentimes due to cultural ignorance • Indian children are more often medicated, rather than treated with intensive psychiatric care

6. Why Should this Disturb Us • Lack of tribal resources to respond: • 1) IHS system of mental health service delivery is primarily geared to adults, 2) it is difficult, if not impossible, to identify how much of the IHS funding under the Mental Health and Social Services and Contract Health Services budget categories go to mental health service, particularly mental health services to children and 3) IHS admits in their own budget request that “specialized mental health services for populations, such as children are often minimal....” They also admit “many critical components of mental health ... are not available ... to Indian communities.” • Terry Cross testimony before Congress • More state courts are citing mental illness among native children as grounds for deviating from placement preferences or denying transfers of jurisdiction

7. Impact of Medicating Children • Losing a generation of healing- children’s behavior reflect the traumas they feel and by medicating them we deny them the right to heal? • We label them (ODD, ADD, ADHD, FAS, FAE, PTSD, OCD, etc) and we create a reason to deviate from placement preferences of Indian Child Welfare Act and create a reason not to have tribal systems help these children • It is a way of absolving ourselves of responsibility for changing their environments

8. Other emerging issues • Impact of psychology on cases involving native children • Rates of mental illness among children have increased dramatically (bipolar disorder for example up five-fold in ten years), especially among native children • Many native children are medicated both in state and tribal custody • Mental illness now frequently being cited as basis for deviating from placement preferences of ICWA and grounds for denying transfers • Have psychologists become too important and over-utilized in the child protection system and the family courts overall?

9. Some emerging issues in ICWA arena • Interplay between ICWA and Adoption and Safe Families Act • Are active efforts required to prevent breakup of family when an aggravated circumstance under federal or tribal law exists? • When a state case reaches permanency stage under ASFA is the proceeding too late to transfer to tribal court- recent Minnesota Supreme Court Case seems to indicate it is but ND decision in AB may not agree- See Matter of Welfare of T.T.B • Must a county seek termination of parental rights after child is in foster care a certain period of time? ASFA seems to say yes unless a compelling circumstance exists while ICWA silent on the subject • Is a permanency placement meeting a proceeding which Tribes are entitled to notice of if the permanency plan is changed?

10. The Children That Fall through the ICWA cracks • Indian children in placements due to status or delinquent behavior • Although ICWA generally does not apply to placements based upon delinquent behavior more and more placements due to initial delinquent behavior are really foster care placements (recent case in South Dakota involving rape of foster care children in custody of state legislator and wife for example) • Should we be applying ICWA notice and evidentiary standards to these cases? • ICWA does apply to status offenses (minor consumption, etc) but are ICWA standards being applied?

11. State ICWA initiatives and the nagging questions on constitutionality of ICWA • Many States (Minnesota, Iowa, Oklahoma, California, Washington, others) have enacted state laws to clarify and enhance ICWA requirements • At least two courts (California Court of Appeals and Iowa Supreme Court) have struck portions of these statutes down on constitutional grounds • Can States redefine Indian child and change other requirements of ICWA without running afoul of state and federal constitutions • Will US Supreme Court address EIFE in a constitutional challenge