ICWA Overview

[Okwes]

ICWA Overview



What is the Indian Child Welfare Act?
The Indian Child Welfare Act (ICWA) is a federal law which regulates
placement proceedings involving Indian children. If your child is a
member of a tribe or eligible for membership in a tribe, your family has
the right to protection under the ICWA. These rights apply to any child
protective case, adoption, guardianships, termination of parental rights
action, runaway/truancy matter, or voluntary placement of your children.

When was this law passed?
The ICWA was created in 1978 by the federal government in order to
re-establish tribal authority over the adoption of Native American
children. The goal of the act when it passed in 1978 was to strengthen
and preserve Native American families and culture.

Why was this law passed?
Before the ICWA was passed, a very high percentage of Indian families
were broken up because non-tribal agencies removed children from their
homes. One reason for the high removal rate was because state officials
did not understand or accept Indian culture. Today, the ICWA sets
minimum standards for the removal of Indian children from their homes.

Who does it apply to?
The law applies to Native American children who are unmarried and under
age eighteen. The child must be either a member of a federally
recognized Indian tribe or must be eligible for membership in a
federally recognized Indian tribe.

What does the law do?
The ICWA requires that placement cases involving Indian children be
heard in tribal courts if possible, and permits a child's tribe to be
involved in state court proceedings. It requires testimony from expert
witnesses who are familiar with Indian culture before a child can be
removed from his/her home. If a child is removed, either for foster care
or adoption, the law requires that Indian children be placed with
extended family members, other tribal members, or other Indian families.

What if a child is not living on the reservation does the ICWA still
apply?
Yes. The ICWA has a notice requirement. This means that if a state takes
a child into custody, it must give notice to the child's tribe, wherever
the child may be in the U.S.

Does the act apply to a couple getting a divorce?
No.

What if a parent allowed someone else to become a guardian of their
child and later changes their mind?
The ICWA provides that an Indian parent always has the right to revoke a
guardianship.

Who decides if am a member of the tribe?
The law does not apply a specific blood quantum as the criteria for
membership. It leaves it up to each Native American tribe to make such
determinations on their own.

Enforcement Problems in the States ?The goals of ICWA cannot be
fulfilled if it is not implemented in state proceedings involving Indian
children. Today, lack of ICWA enforcement is a problem throughout the
country. Too often state officials are uninformed about the Act or
refuse to apply it. This results in Indian children being removed from
their homes and placed in non-Indian foster or adoptive homes, despite
the contrary intent of the Act. Lack of state enforcement can
compromise the best interests of children and their families, which in
the end, is a problem for the state as well as the tribe.

A study of nine North Dakota counties with the highest population of
Indian children in foster care turned up mixed results concerning ICWA
enforcement. For example, the study revealed that there is a high level
of county compliance in determining if a child is a member of a tribe or
eligible for membership and over half the case records indicated that
active efforts were made to prevent out-of-home placement. The study
found that compliance is mixed regarding notice given to tribes, parents
and Indian custodians about the placement of Indian children, however.
In addition, over half the foster care case records indicate that ICWA
preferences were not followed in placement decisions.

A study of ICWA compliance in Arizona turned up mixed results as well.
While Arizona provides ICWA training to caseworkers at the beginning of
their employment, on-going training occurs less often. State efforts to
maintain regular contact with the child's tribe appear to be consistent,
but state and tribal official report the timeframe required by the state
court does not allow enough time for state and tribal officials to
collaborate. State and tribal officials report that in many cases,
transferring the case to tribal court would be preferable, but tribes
often lack the resources to meet the needs of the affected parties.
Finally, the study found that Arizona's attempt to comply with the
preference system established by ICWA for out-of-home placement is good,
although no agreement exists between the state and tribes defining the
meaning of "active efforts" to prevent the breakup of the family in the
first place. The undefined nature of this requirement leaves
caseworkers without clear guidelines for developing case plans to assist
these families.

State Activity ?While it is not necessary for states to enact their own
Indian child welfare act, if they do not, they rely solely on the
federal Act. The provisions of the federal Act are somewhat general and
this can lead to problems concerning state enforcement. Some states
have chosen to enact their own Indian child welfare laws or develop
policies that clarify requirements of the federal Act and specify what
state action is necessary for compliance.

For example, Iowa SF 354 was enacted during the 2003 legislative
session. The state legislature adopted this bill in order to clarify
state policies and procedures regarding implementation of ICWA. The law
specifies that state policy requires full cooperation with Indian tribes
and tribal citizens to ensure the intent and provisions of ICWA are
enforced. In addition, the law requires notice to the tribe and family
at every stage of a child welfare proceeding to help parties understand
and participate in the legal process.

Similarly, the Colorado legislature passed HB 1064, which created an
Indian child welfare law for Colorado and amended relevant sections of
the Colorado Children's Code to ensure compliance with the federal Act,
during the 2002 legislative session. The legislature recognized that,
in order to achieve the goals of the federal Act, it is necessary for
the state to determine whether children who are the subject of child
welfare proceedings in the state court system are Indian children. If
so, the state must ensure that timely and appropriate notice is given to
the child's family and tribe. In addition, the state has formed an
Indian Child Welfare Act Team, which is comprised of officials from
around the state who monitor efforts made in relation to ICWA.

Finally, Arizona does not have legislation that establishes a state
Indian child welfare law, but does have policies in place that require
child welfare caseworkers to determine if the child has any Indian
heritage within five days of a case being opened. This policy is
designed to identify all ICWA-eligible children, ensure the proper
application of the federal Act, and ensure that the child's family and
tribe has adequate notice of the pending proceeding. Arizona also has
established a tribal/state workgroup designed to address ICWA-related
issues. The group is comprised of state and tribal officials from
around the state.

States wishing to emphasize compliance with the federal Act or to
establish clear guidelines for compliance with ICWA requirements may
want to consider adopting legislation similar to what has been done in
Iowa or Colorado. Clear guidelines make it possible for caseworkers to
establish plans that conform to ICWA standards, ensure that the intent
of the federal Act is carried out and hopefully, will result in better
service for Native families.

The Indian Child Welfare Act

Whether you are interested in adopting a Native American child, an
adoption professional working with Native and Indigenous Peoples, or a
Native American adoptee trying to reconnect with your culture and
heritage, chances are you've encountered the complexities of the Indian
Child Welfare Act. While the Act, initially enacted in 1978, has got to
be in the running for the federal law with the greatest number of
amendments, it's important to understand what led up to its enactment,
and the effects of previous policies that make it so important.

Ill-treatment of Native Americans and Indigenous Peoples dates back to
the arrival of the first settlers in the "new world;" however, I'll just
touch on some recent history, specifically the Indian Adoption Project.

The Indian Adoption Project operated between 1958 and 1967 under the
auspices of the Bureau of Indian Affairs, with support and funding from
the Child Welfare League of America (CWLA). CWLA participation bestowed
an air of legitimacy on the practice of removing Indian children from
their families basically because the "white man knew better," and while
adoptive placements under the Project itself were limited, it is
estimated that more than one quarter of all Indian children were removed
from their families and placed into white adoptive and foster homes or
orphanages before the Indian Child Welfare Act of 1978.

In 2001, the CWLA Board of Directors passed a resolution expressing
regret for that group's participation in the Indian Adoption Project,
and for its failure to support the Indian Child Welfare Act (ICWA) in
1978. Speaking at the National Indian Child Welfare Association (NICWA)
conference in Anchorage, Alaska that year, CWLA President/CEO Shay
Bilchik's remarks included the following comments:
"One ethnic group, however - American Indians and Alaskan Natives - a
people of many cultures and governments, and the original citizens of
this land - was singled out for treatment that ranged over the decades
from outright massacre to arrogant and paternalistic "improvement." CWLA
played a role in that attempt. We must face this truth.

"... While adoption was not as wholesale as the infamous Indian schools,
in terms of lost heritage, it was even more absolute. I deeply regret
the fact that CWLA's active participation gave credibility to such a
hurtful, biased, and disgraceful course of action. I also acknowledge
that a CWLA representative testified against ICWA at least once,
although fortunately, that testimony did not achieve its end.

"As we look at these events with today's perspective, we see them as
both catastrophic and unforgivable. Speaking for CWLA, I offer our
sincere and deep regret for what preceded us." (see full text)
So, the next time you feel frustrated with the Act, remember what was
done in the past. It won't help things go more quickly, but with an
understanding of why the Act is in place, it may be easier to be patient
as you go through the necessary legal steps. There are several resources
for those with an interest in and connection to the adoption and foster
care (past and present) of Native American and Indigenous children,
including:

Legal
• The Indian Child Welfare Act: Definition
• The Indian Child Welfare Act: Full Text (.pdf format)
• Guidelines for State Court Indian Child Custody Proceedings, NICWA
(.pdf format)
• Information for Adopting Parents
• Indian Adoptive Family Resources
• NACAC: The Indian Child Welfare Act: An Overview, by Kathleen Deserly
• The Indian Child Welfare Act, from the law firm of Crouse Cobb & Bays
• CWLA President/CEO Shay Bilchik's Remarks
• Working Together to Strengthen Supports for Indian Children and
Families: A National Perspective
• Historical References
• Adoption History Project: Indian Adoption Project
• Adoption History Project: Indian Child Welfare Act
• CWLA Newsletter: Coming Home: The Lingering Effects of the Indian
Adoption Project, by Kristen Kreisher
Related Resources
Tribal Court CASA Project

[Okwes]

Indian Child Welfare Act Update
by ?Nancy Thorington
www.nijc.org/current4.htm

Despite the fact that it has been over 20 years since the enactment of
the Indian Child Welfare Act, understanding of and compliance with the
Act are far from universal. This article examines five ICWA cases that
have been decided in the past year. Of those cases, two followed ICWA
properly, two did not, and the remaining case is questionable. Three of
the cases came out of California state courts, each of which analyzed
ICWA very differently, demonstrating the confusion that still exists
with regard to the Act.

The California Cases

1) In re Desiree F - In this case, a girl, Desiree F., was born testing
positive for cocaine and opiates, and a petition was filed by the County
of Fresno to declare her a dependent of the court. The mother is
Chukchansi Indian and Alaska Native. The petition noted that Desiree
might be an Indian child, thus implicating ICWA; however, neither tribe
was notified. Desiree's maternal grandmother asked that the child be
placed with her. Desiree was placed in a non-Indian foster home, with no
reason given as to why she was not placed with her maternal grandmother.
From here, the case gets a bit strange. Apparently, the caseworker put a
note in the file that the mother was not Indian because the "Chukchansi
deny she is a member of the tribe." This assertion is based on a letter
from the former Tribal Chairperson dated over a year before the child
was born. The letter was not accompanied by a tribal resolution that
authorized the Tribal Chair to act on behalf of the Tribe with respect
to ICWA matters. The caseworker made no attempt to contact the Tribe. A
few months later, the case was transferred to Kings County. Based on the
notes from the Fresno County caseworker, Kings County presumed ICWA did
not apply, and they made no attempt to contact the Tribe or otherwise
comply with the Act.
During the two years after she was born, Desiree lived in foster homes,
and her case was moving through the system. It was not until after the
order terminating parental rights was issued that the Tribe finally
became aware of Desiree's existence. Within weeks, they filed a motion
to intervene. Desiree was subsequently enrolled as a member of the
Tribe.
The juvenile court denied the Tribe's motion to intervene, concluding
that, because neither Desiree nor her mother were members of the Tribe
when parental rights were terminated, the termination order was valid.
The juvenile court further held that the Tribe could not intervene once
these rights were terminated as that action severed the child's link
with the Tribe. The Tribe appealed this ruling, and the appellate court
reversed, holding the Tribe was not given proper notice, the Tribe did
have the right to intervene at any time in the proceedings and that the
Indian status of a child need not be certain for the Act to apply and
notice to the tribe to be required.
Although this case ultimately was decided correctly, it is disheartening
to note that caseworkers in two counties and the trial court could so
blatantly ignore the Act. First, the social workers and the court failed
to take the simple step of notifying the Tribe of the proceedings as
required by the Act. Next, the court refused to follow the express
language of ICWA which states that a tribe can intervene at any time in
the proceedings. As a result of the failure to promptly notify the
Tribe, the Tribe was unaware that the child existed until after the
termination order was issued. Then the court blamed the Tribe for not
intervening sooner.
It is also worth noting that, while the appellate court decision and
reasoning were for the most part very sound, there was some language in
the opinion that is disturbing. In its discussion of the applicability
of ICWA to Desiree's case, the appellate court made the following
statement: "This is not a case of an Indian child being removed from a
family having no connection whatsoever to the Indian community. These
facts, [the willingness of Desiree's grandmother to assume custody and
the number of members of her extended family who are enrolled members of
the Tribe] plus Desiree's enrollment as a tribal member, as a matter of
law constitute significant tribal affiliation warranting application of
the placement preference in the ICWA." But all that is required under
ICWA is that the child be a member of or eligible for membership in a
federally-recognized tribe.
The court's language exemplifies a disturbing trend among many courts to
require a child to have a certain undefined level of affiliation with
his or her tribe. California in particular has struggled with this
concept, known as the "significant ties" exception to ICWA. Using the
justification that a child lacks "significant ties" with his or her
Indian community, many courts in California were refusing to apply ICWA
to children who were clearly covered by the Act. The California
legislature responded to this judicially-created loophole by enacting
legislation that added the following sections to the California code:
A determination by an Indian tribe that an unmarried person, who is
under the age of 18 years, is either (1) a member of an Indian tribe or
(2) eligible for membership in an Indian tribe and a biological child of
a member of an Indian tribe shall constitute a significant political
affiliation with the tribe and shall require the application of the
Indian Child Welfare Act to the proceedings.
This was supposed to preclude judges from circumventing ICWA by
substituting their biases for the express language and legislative
intent of ICWA. But it seems no matter how many times or how many ways
Congress and state legislatures tell judges that it is up to the tribes
to determine their own membership criteria, some judges cannot keep from
imposing their standards on the tribes.

2) Letitia V. - This case involved a mother, Lettitia V., who had four
children in various stages of the juvenile dependency system, when a
fifth child, Levi, was born with cocaine in his system. He was
immediately placed in the system. The Pechanga Tribe, of which Lettitia
is an enrolled member, filed a Notice of Intervention. Levi was placed
with his maternal cousin, where he was reportedly doing well. The Tribe
approved of the placement.
The main issue in this case was whether the state was required to
provide individualized services to the parents of a child that falls
under the Indian Child Welfare Act. California law does not require
reunification services to be provided to a parent when the court finds
that reunification services were unsuccessfully provided with respect to
any siblings or half siblings of the child. In this case, the mother's
parental rights had been terminated with respect to three of her
children at the time Levi was born. It appears ICWA was properly
followed with regard to these children.
The state argued that, because Lettitia had failed to comply with her
reunification plans for her other children and she was still using drugs
when Levi was born, they need not provide services for her with respect
to Levi. The mother and the Tribe argued that, under ICWA, the
reunification services must be provided to each individual child. The
court held that such services in this case would be "duplicative" and
"idle" considering the mother's lack of success with respect to her
other children.
Given the facts of this case - the mother's continued drug use,
termination of parental rights of three of her other children and
compliance with ICWA for the other children - this may not seem like
such a bad result. The problem, however, is that the case sets bad
precedent. It is a fact of drug and alcohol rehabilitation that relapses
occur. So, in a situation where a parent was working hard on
reunification but suffered a temporary setback, that parent could lose
his or her parental rights forever to a child who had the misfortune of
being born during a temporary relapse. Or a court could use the
reasoning in this case as a means of getting around ICWA altogether. For
example, if the court found that reunification services would be futile
with a sibling, then the court might find that notification of the tribe
or BIA was unnecessary.
This would be the exact result if the reasoning in this case were taken
together with the reasoning of the juvenile court in the Desiree F. case
discussed above. The juvenile court in Desiree F. held that terminating
the parental rights of the mother severed the tribe's right to
intervene. If the court had found that reunification services were
unnecessary and had gone straight to a permanent placement plan, the
child would have been adopted and the case closed long before the tribe
even knew she existed.

3) Children's Services Division v. Robin W. - In this case, a petition
was filed to assume jurisdiction over a 10-day-old boy after the mother
tested positive for methamphetamine and marijuana in her system two days
prior to his birth. The caseworker's report indicated that ICWA might
apply. According to the paternal grandmother, her mother was born on a
reservation in Oklahoma, although she did not know which reservation and
her mother was deceased. There was also a statement by the father that
the paternal grandmother had told him that her father was one-sixteenth
Indian but that her mother had no Indian ancestry. Since the caseworker
had no indication from either the father or paternal grandmother as to
which tribe the child might be eligible for membership in, notice was
sent to the BIA.
The issue in this case was whether the state was required to do more
than send notice to the BIA or whether a response from the BIA was also
required before the state could conclude that the Act did not apply. The
court concluded that ICWA only requires that the state send the notice
to the BIA.
This is not a particularly remarkable case in any respect. Given the
vague and contradictory information given by the father and paternal
grandmother, it is unlikely the BIA could find the tribal affiliation of
the child. It was not even certain that there was any Indian heritage;
the paternal grandmother merely stated her mother was born on a
reservation in Oklahoma. It is possible that she was not even Indian. A
tougher issue will be whether a state is required to comply with the Act
when there is more likelihood that the child is an Indian child but
tribal affiliation is unknown.

Other Cases

4) In the Matter of D.L.S. - In this case out of Ohio, a three-year-old
boy was placed in foster care after being admitted to the hospital for a
broken leg and was subsequently adjudicated to be abused. The facts
given in the appeal are sparse as to what happened after the boy was
initially placed in foster care. All the opinion says is that in April
of 1995, the child was placed in foster care; in March of 1996, the
Children's Services Board filed a motion for permanent custody; and in
February of 1998, permanent custody was granted to the Children's
Services Board. The only other fact included in this poorly written
opinion is that in April of 1998, the Northeastern United States Miami
Intertribal Council filed a motion to intervene. No mention is made of
the Indian Child Welfare Act or attempts to comply with it.
The Juvenile Division of the Court overruled the motion to intervene on
the basis that it was not timely filed, and in May of 1998, the trial
court granted permanent custody of the boy to the Children's Services
Board.
Apparently, the mother filed an appeal of the trial court's grant of
permanent custody on six grounds. Three of those do not implicate ICWA,
so they are irrelevant to this discussion. The other three assignments
of error are described by the court as follows:
1. The trial court erred in concluding that the court had jurisdiction
over the mother and son;
2. The trial court erred in denying the mother and her son their
respective rights under ICWA; and
3. The trial court erred in removing the boy from his home in violation
of ICWA.
The appellate court concludes that all of these assertions are
interrelated and decides to address them "in a consolidated manner."
While it is true they are interrelated in that they all deal with ICWA,
the first issue, the trial court's jurisdiction over the mother and son,
is a very distinct inquiry that does not have much to do with whether
the agency complied with the rest of ICWA. Unfortunately, the court
holds that, because it had jurisdiction over the case, the state does
not need to comply with ICWA. The court then proceeds to dismiss the
other two assignments of error with no further discussion.
The question is where to begin with this appalling decision. The court's
discussion of the jurisdiction question is apparently based on a motion
to transfer jurisdiction to tribal court. The appellate court concludes
that a motion to transfer at this late stage is untimely. In its
discussion, the court states that the Miami Tribe was timely notified of
the proceedings but declined to intervene.
The court seems to be confusing a motion to transfer with a motion to
intervene. There is no indication that the Tribe filed a motion to
transfer; the only motion discussed by the court was the Tribe's motion
to intervene. But the express language of ICWA makes it clear that a
tribe can intervene at any time in the proceedings. If there was a
motion to transfer and the Tribe had in fact been notified of the
proceedings early on, then the appellate court would probably be correct
in concluding such a transfer motion is untimely. However, given the
court's incompetence, there is no way to know what motions were actually
filed and whether notice to the Tribe was proper.
In any case, even if the court correctly denied a motion to transfer the
case to tribal court, that does not have any bearing on whether the
agency followed ICWA with respect to providing the appropriate services
to the mother and son and placing the son in accordance with the Act.
Yet the court concludes: "Hence, the trial court, within its discretion,
correctly concluded that good cause existed for it to deny appellant's
oral motion to dismiss the case. Accordingly, appellant's first three
assignments of error are without merit." (27 ILR 5038). There is no
discussion of whether the child is eligible for enrollment in the Miami
Tribe and, therefore, the mother and son are entitled to services and
the placement preferences outlined in the Act.

5) In the Matter of C.H. - In this case out of Montana, a
three-month-old girl was taken into emergency protective custody based
on evidence of physical abuse. She was placed in a non-Indian foster
home. The state later discovered the girl was eligible for enrollment in
the Confederated Tribes of Siletz Indians of Oregon and, therefore, ICWA
applied. The agency notified the Tribe, which filed a motion to
intervene and to transfer the matter to tribal court. The state court
granted the motion to intervene, and the Tribe withdrew its motion to
transfer the case at the adjudicatory phase, but reserved the right to
transfer at the disposition phase to ensure the ICWA placement
preferences were met.
Approximately one year later, the state petitioned the court to
terminate the parental rights based on a stipulation signed by both
parents voluntarily relinquishing those rights. The court ordered their
rights be terminated and granted custody of the girl to the state and
set a hearing date for permanent placement. Two days later, a member of
the girl's extended family who was also a tribal member filed a motion
to intervene, expressing an interest in adopting the child. The
non-Indian foster parents with whom the girl had been living since being
taken from her birth parents also filed a motion to intervene. A few
months later, the Tribe renewed its motion to transfer, based on
concerns that the state court was not properly considering the Tribe's
placement preference recommendations.
The Indian Child Welfare Act requires that children be placed according
to the outlined preferences, unless there is "good cause" to deviate
from those preferences. Although the Act does not define "good cause,"
the BIA has set out guidelines that state the situations that constitute
"good cause." One of these exceptions is where there are "extraordinary
physical or emotional needs of the child as established by testimony of
a qualified expert witness" that cannot be met by an Indian family.
Based on this "good cause" exception, the district court denied the
Tribe's motion to transfer and ordered that the child remain with the
non-Indian foster parents. The Indian family and Tribe appealed.
The appellate court examined the district court's findings, which were
based on expert testimony regarding potential future trauma. The experts
asserted that, despite the fact that the child was developing normally
both physically and emotionally, there was a possibility that she might
develop some emotional problems at some undefinable point in the future.
Reviewing each of the assertions by the state agency and foster family,
the appellate court found that the mere possibility of future physical
and emotional problems was too nebulous to justify deviating from the
placement preferences of the Act.
While the result in this case was correct, the district court's original
decision is evidence of the lengths to which some courts will go to
avoid the mandates of the Indian Child Welfare Act. Many such cases do
not get appealed because the tribe or Indian family does not have the
resources. Even if the case is appealed, there is still no guarantee the
appellate court will apply the Act properly.