The ICWA, the Best Interests of Indian Children
Recognizing historical necessity, practical application and future implications of the ICWA
Shannon Smith Executive Director ICWA Law Center 1730 Clifton Place, Suite 104 Minneapolis, MN 55403 Bringing People Together . . . Voices to be Heard Family Tribe Community State and County – Local Social Service Agencies Guardian ad litems Attorneys Advocates Speaking the same language . . .
Best interests Family Permanency Historical Necessity
To understand ICWA, context is needed
History directly impacts the stories
Too often, history is assumed to be true because it is taught in schools or portrayed by the media does not tell the whole story or is inaccurate History lessons 1492 – Indian population about 10 – 12 million
By 1496, the native population was cut in half. In less than 50 years after Columbus came in contact with the island, the entire native population was gone.
By 1900: about 250,000
By 2009: a little over 3 million Federal Indian Policies: Dealing with the “Indian Problem”
“kill the Indian save the child” Reservation Movement, 1850-1887 1849 Discovery of Gold 1851 and 1871 Indian Appropriation Act authorized the creation of Reservations and ended treaties Indian Wars Dakota War Black Hawk War Sioux Wars Battle of the Rosebud Battle of the Little Bighorn Wounded Knee 1928-1945 Indian Reorganization Act Meriam Report – surveyed quality of life of Indian people in 26 states, considered: general policy for Indian affairs, health, education, family and community live, the legal aspects of the “Indian Problem” and missionary activities among the Indians
Conclusion: Federal Indian Policy was an Absolute Failure and Harmful to Indian People 1945 – 1961 Termination Policy
-Indian Reorganization Act repelled and 109 tribes were terminated -1952 – Urban Indian Relocation Program, Indians encourage to leave the reservations for 9 selected urban areas – promises of jobs, housing and financial assistance -Between 1950 and 1980, over 750,000 have moved to Urban areas from reservations The Boarding School Experience
•Attendance was mandatory • Children as young as 5 removed by armed police • Children were place hundreds if not thousands of miles away • Families were faced with loss of government food rations if they hid their children • Families had no other option for school • Children were often not able to go home during the summers as they were provided to local farmers for laborers Taught to become “Good Indians”
•Severely punished for practicing their language, culture and religion •Hair was cut and children were forced to wear uniforms •“educated” to become laborers and forced to work long hours •Children experienced physical, emotional and sexual abuse on a daily basis Meriam Report on the condition of the schools
“The survey staff finds itself obliged to say frankly and unequivocally that the provisions for the care of the Indian children in boarding schools are grossly inadequate” Condition of schools . . . . Overcrowded, underfunded, understaffed and corrupt Children were malnourished, overworked, harshly punished and poorly educated Routine physical, emotional and sexual abuse Disease rampant resulting in disproportionate high number of deaths 10, 11 and 12 year olds spending large amounts of time in heavy industrial labor 1973, 60,000 American Indian children estimated to have been enrolled in Indian Board Schools The Indian Adoption Project
In 1958, the Child Welfare League of America partnered with the BIA under a 9 year federal contract for the purposes of placing Indian children with “white” families Indian Adoption Project ended in 1967
In 2001, CWLA apologized for the “hurtful, biased and disgraceful course of action” they took to encourage and support the “rescuing” of Indian children from their culture and their families The Indian Child Welfare Act 1978
Practical Application ICWA – Mandates and Spirit
• Recognizes the fundamental connection between Indian children, their families and their tribes Important ICWA Resources The ICWA, 25 U.S.C. 1901 et seq. (1978) The Minnesota Indian Family Preservation Act The BIA Guidelines The Minnesota Rules of Juvenile Protection Procedure The Tribal State Agreement as amended in 2007 The Department of Human Services Social Service Manual ICWA Active Efforts Best Practice ICWA 1901 . Congress has plenary power over Indian affairs . Congress has assumed the responsibility for protection and preservation of Indian tribes and their resources . There is no resource more vital to the continued existence and integrity of Indian tribes than their children . There is an alarmingly high percentage of Indian families broken up . States have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families ICWA 1902 It is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . ICWA 1903
When ICWA Applies: (1) Indian Child A member of a Federally Recognized Tribe Eligible for membership in a Federally Recognized Tribe Tribe’s determination conclusive
(2) Child Custody Proceedings Foster care placement Termination of parental rights Preadoptive placement Adoptive placement Third party custody proceedings
Does NOT apply in divorce proceedings or delinquency proceedings ICWA 1911 “Tribes are separate, distinct nations, whose sovereignty predates the establishment of the United States”
The heart of the matter –
Indian tribe jurisdiction over Indian child custody proceedings (a) Exclusive jurisdiction (b) Transfer of proceedings (c) State court proceedings ICWA 1912
. (a) Notice – to parent, Indian custodian and Indian child’s tribe . (b) Appointment of counsel – if indigent than parent or Indian custodian; and for child if in best interests . (c) Examination of reports . (d) Remedial services and rehabilitative programs; preventative measures (Active Efforts) . (e) Foster care placement orders, evidence, determination of damages to child – Qualified Expert Witness . (f) Parental rights termination orders; evidence; determination of damage to child – Qualified Expert Witness Active Efforts
Guidance from Indian child’s tribe on family structure Determine barriers Providing services including financial assistance, food, housing, health care and transportation Visitation Services to extended family members to allow them to be considered for placement if out of home placement is necessary ICWA 1913 Voluntary Placement Foster care placement of termination of parental rights Before a Judge Executed in writing Judge’s certificate Not prior to or within 10 days of birth ICWA 1914
Petition to Invalidate Any Indian child who is the subject of any action for foster placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that action violated any provisions of 1911, 1912, and 1913 ICWA 1915
“placing Indian children in homes that reflect the unique values of Indian culture” (a) Adoptive placements
In absence of good cause to the contrary Member of the child’s extended family Other members of the Indian child’s tribe Other Indian families (b) Foster care or pre -adoptive placements Least restrictive setting which most approximates a family and in which his special needs, if any, may be met, with reasonable proximity to his or her home – taking into account special needs Preference 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 licenses or approved by an authorized non-Indian licensing authority An institution for children approved by an Indian tribe or operated by an Indian organization ICWA 1916
Return or the child Petition best interests Removal from foster care of child home, placement Whenever a final procedures decree of adoption is • ICWA procedures shall vacated or adoptive apply parents voluntarily • Except in cases where an agree to TPR, parent Indian child is being or Indian custodian returned to parent or may petition for return Indian custodian ICWA 1917
Tribal affiliation information
An Indian person who is 18 and who is subject of an adoptive placement . . .upon application shall be informed of tribal affiliation, if any, of the biological parents and provide other information to protect tribal relationship ICWA 1918
Reassumptioon of jurisdiction over child custody proceedings ICWA 1919 Agreements between States and Indian tribes
February 2007 Minnesota Tribal / State Agreement “The purpose of this Agreement is to protect the long term best interests, ad defined by the tribes of Indian child and their families, by maintaining the integrity of the Tribal family, extended family and the child’s Tribal relationship. The best interests of Indian children are inherently tied to the concept of belonging. Belonging can only be realized for Indian children by recognition of the values and ways of life of the child’s Tribe and support of the strengths inherent in the social and cultural standards of tribal family systems. Family preservation shall be the intended purpose and The Tribal / State Agreement
The foundation of this Agreement is the acknowledgement that Indian people understand that their children are the future of their tribes and vital to their very existence. An Indian child is sacred and close to the creator. 1921 ICWA 1921 Higher State or Federal Standard Applicable to Protect Rights of Parent or Indian
ICWA is only the beginning – ICWA does not dictate an answer rather gives a framework to reach an anwer ICWA 1922 Emergency removal or placement of Indian child Nothing in ICWA shall be construed to prevent the emergency removal of an Indian child who is a resident of or is domiciled on a reservation, but temporarily located off the reservation, from his parent or Indian custodian or the emergency placement of such child in a foster home or institution, under applicable State law, in order to prevent imminent physical harm or damage to the child . . . Conclusion “The best interests of Indian children are inherently tied to the concept of belonging. Belonging can only be realized for Indian children by recognition of the values and ways of live of the child’s Tribe and support of the strengths inherent in the social and cultural standards of tribal family systems . . .Indian people understand that their children are the future of their tribes and vital to their very existence. An Indian child is sacred and close to the creator.” Minnesota Tribal / State Indian Child Welfare Agreement as amended in 2007 ICWA –Future Implications
•Disparities •Consider South Dakota – Legal Challenges •Supreme Court – Adoptive Couple v. Baby Girl, a minor child under the age of fourteen years, Birth Father and the Cherokee Nation