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A historical and cultural perspective on ICWA Why was ICWA necessary?

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Presentation on theme: "A historical and cultural perspective on ICWA Why was ICWA necessary?"— Presentation transcript:

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2 A historical and cultural perspective on ICWA Why was ICWA necessary?

3 Everyone wants what is best for the child ! “Why are Indian children and families treated differently?”

4 Understanding: When someone says, “we know what is best for your children,” or “I am from the government - I am here to help”

5 Why trust is not the automatic response

6 BIA started as part of the War Department

7 Education as a part of the “civilizing” function

8 Solution to the “Indian Problem”

9 1878 the Hampton Institute, a school for freed slaves, accepted Indian prisoners in an assimilation experiment.

10 In 1879 Carlisle Indian School, patterned after the military model, opened.

11 By 1890 attendance was enforced through threats of cessation of rations and supplies.

12 Early “approved” curricula prohibited teaching of reading/writing.

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15 Many died of disease and broken hearts.

16 Succeeded in breaking intergenerational teaching in Indian communities. Language, religious practices, cultural knowledge were targeted

17 Generations learned to parent from BIA dorms

18 Motto at BIA Schools… Tradition is the enemy of progress Tradition is the enemy of progress A new ‘tradition’ is created that teaches ‘parenting’ from matrons on the dormitories A new ‘tradition’ is created that teaches ‘parenting’ from matrons on the dormitories

19 We have seen how the federal government has treated Indian families But how have States treated families in Indian Country?

20 American Indian Policy Review Commission of the United States Congress May 17, 1977

21 Comparative Rates for Indian Children

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30 How does this happen? An exercise …

31 MIND THE LITTLE THINGS Springs are little things, but they are sources of large streams; nails and pegs are little things, but they hold the parts of a large building together; a word, a look, a smile, a frown, are all little things, but powerful for good or evil. Think of this and mind the little things. - Hillis

32 Find the number of FsFsFsFs

33 MIND THE LITTLE THINGS Springs are little things, but they are sources of large streams; nails and pegs are little things, but they hold the parts of a large building together; a word, a look, a smile, a frown, are all little things, but powerful for good or evil. Think of this and mind the little things. - Hillis

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40 MIND THE LITTLE THINGS Springs are little things, but they are sources of large streams; nails and pegs are little things, but they hold the parts of a large building together; a word, a look, a smile, a frown, are all little things, but powerful for good or evil. Think of this and mind the little things. - Hillis

41 MIND THE LITTLE THINGS Springs are little things, but they are sources of large streams; nails and pegs are little things, but they hold the parts of a large building together; a word, a look, a smile, a frown, are all little things, but powerful for good or evil. Think of this and mind the little things. - Hillis

42 MIND THE LITTLE THINGS Springs are little things, but they are sources of large streams; nails and pegs are little things, but they hold the parts of a large building together; a word, a look, a smile, a frown, are all little things, but powerful for good or evil. Think of this and mind the little things. - Hillis

43 MIND THE LITTLE THINGS Springs are little things, but they are sources of large streams; nails and pegs are little things, but they hold the parts of a large building together; a word, a look, a smile, a frown, are all little things, but powerful for good or evil. Think of this and mind the little things. - Hillis

44 MIND THE LITTLE THINGS Springs are little things, but they are sources of large streams; nails and pegs are little things, but they hold the parts of a large building together; a word, a look, a smile, a frown, are all little things, but powerful for good or evil. Think of this and mind the little things. - Hillis

45 MIND THE LITTLE THINGS Springs are little things, but they are sources of large streams; nails and pegs are little things, but they hold the parts of a large building together; a word, a look, a smile, a frown, are all little things, but powerful for good or evil. Think of this and mind the little things. - Hillis

46 MIND THE LITTLE THINGS Springs are little things, but they are sources of large streams; nails and pegs are little things, but they hold the parts of a large building together; a word, a look, a smile, a frown, are all little things, but powerful for good or evil. Think of this and mind the little things. - Hillis

47 Another view of the impact When someone says, When someone says, “ we know what is best for your children.” “ we know what is best for your children.”

48 IDENTIFICATION WITH THE AGGRESSOR

49 Thematic Apperception test Good Bad Beautiful Ugly Smart Dumb Honest Dishonest

50 Identification with the Aggressor Baseline: Baseline: Suicide rate of teenagers in U.S. Suicide rate of teenagers in U.S. Inner City Inner City twice as high twice as high Reservations Reservations higher higher Indian kids in non- Indian homes Indian kids in non- Indian homes highest highest

51 Identification with the Aggressor Baseline: Baseline: Suicide rate of teenagers in U.S. Suicide rate of teenagers in U.S. Inner City Inner City twice as high twice as high Reservations Reservations higher higher Indian kids in non- Indian homes Indian kids in non- Indian homes highest highest

52 ICWA …

53 Sec. 2 …the Congress finds… (4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children… by nontribal public and private agencies…. Sec. 2 …the Congress finds… (4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children… by nontribal public and private agencies….

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59 Differences of Opinion Proposition: The Indian child welfare system/tribal approach ought to be more like the state approach. Indian children should be treated just like all other children. Proposition: The Indian child welfare system/tribal approach ought to be more like the state approach. Indian children should be treated just like all other children. But…. But…. 500,000 children in foster care in this country 500,000 children in foster care in this country 19,000 will age out this year 19,000 will age out this year 60% 60% Homeless, in jail or dead Homeless, in jail or dead

60 Differences of Opinion Proposition: Tribes should be providing the child welfare services without state assistance if they wish to assume jurisdiction Proposition: Tribes should be providing the child welfare services without state assistance if they wish to assume jurisdiction But…. But…. Approximately 60% of state spending on child welfare is federal source or reimbursement Approximately 60% of state spending on child welfare is federal source or reimbursement Approximately 20% of tribal spending on child welfare is federal source or reimbursement Approximately 20% of tribal spending on child welfare is federal source or reimbursement

61 Differences of Opinion Proposition: The ICWA is federal law, adopted in in 1978, and is applicable to state courts dealing with Indian children Proposition: The ICWA is federal law, adopted in in 1978, and is applicable to state courts dealing with Indian children But…. But…. Many judges do not understand, or even know of, the requirements of the ICWA…or do not agree with the reasons for it’s enactment Many judges do not understand, or even know of, the requirements of the ICWA…or do not agree with the reasons for it’s enactment

62 Differences of Opinion Proposition: Tribes delay too long in participating in state child welfare proceedings, especially when making a decision to request transfer late in a case Proposition: Tribes delay too long in participating in state child welfare proceedings, especially when making a decision to request transfer late in a case But…. But…. ?

63 Differences of Opinion Proposition: Tribes delay too long seeking “permanency” under ASFA, particularly when ASFA requires [with exceptions] the filing of petitions to terminate parental rights after 15 out of 22 months in out of home care Proposition: Tribes delay too long seeking “permanency” under ASFA, particularly when ASFA requires [with exceptions] the filing of petitions to terminate parental rights after 15 out of 22 months in out of home care But…. But…. ?

64 Understanding the purpose of ICWA is crucial to interpreting and applying the law

65 Differences of Legal Interpretation Existing Indian Family Doctrine [Matter of the Adoption of Baby Boy L – Kansas Supreme Court 1982] Existing Indian Family Doctrine [Matter of the Adoption of Baby Boy L – Kansas Supreme Court 1982] V. Opportunity to develop Indian identity [In re Junious M – Cal. Ct. App. 1983] V. Opportunity to develop Indian identity [In re Junious M – Cal. Ct. App. 1983] Baby Boy L implicitly overruled [Mississippi Band of Choctaw Indians v Holyfield – U.S. Sup Ct 1989] Baby Boy L implicitly overruled [Mississippi Band of Choctaw Indians v Holyfield – U.S. Sup Ct 1989] State court deciding if family of removal is “Indian enough” to warrant protection under ICWA, notwithstanding the definitions of Indian and Indian child in ICWA [In re Crews – Wa. Sup. Ct. 1993] State court deciding if family of removal is “Indian enough” to warrant protection under ICWA, notwithstanding the definitions of Indian and Indian child in ICWA [In re Crews – Wa. Sup. Ct. 1993]

66 Differences of Legal Interpretation Acknowledgement of paternity & putative fathers Acknowledgement of paternity & putative fathers ICWA: Parent “does not include the unwed father where paternity has not been acknowledged or established” ICWA: Parent “does not include the unwed father where paternity has not been acknowledged or established” New Jersey: according to state law – written and timely acknowledgement New Jersey: according to state law – written and timely acknowledgement Arizona: simple acknowledgement and no formal process required Arizona: simple acknowledgement and no formal process required

67 Differences of Legal Interpretation P.L. – 280 and the ICWA P.L. – 280 and the ICWA Wisconsin A.G. Opinion [70 Op. Att’y Gen. Wis. 237 (1981)] : “…Pub. L. No. 280 and non-Pub. L. 280 Wisconsin Indian tribes’ have exclusive regulatory jurisdiction over child custody proceedings involving Indian children who reside or are domiciled within the reservation.” Wisconsin A.G. Opinion [70 Op. Att’y Gen. Wis. 237 (1981)] : “…Pub. L. No. 280 and non-Pub. L. 280 Wisconsin Indian tribes’ have exclusive regulatory jurisdiction over child custody proceedings involving Indian children who reside or are domiciled within the reservation.”

68 Differences of Legal Interpretation P.L. – 280 and the ICWA P.L. – 280 and the ICWA Doe v Mann, 9 th Circuit filed July 19, 2005: Doe v Mann, 9 th Circuit filed July 19, 2005: “…case of first impression for the federal courts, requiring us to reconcile [P.L.280]…with the exclusive jurisdiction granted to tribes by ICWA…” “…case of first impression for the federal courts, requiring us to reconcile [P.L.280]…with the exclusive jurisdiction granted to tribes by ICWA…” “…ICWA does not provide [tribe] with exclusive jurisdiction…” “…ICWA does not provide [tribe] with exclusive jurisdiction…”

69 Differences of Legal Interpretation Notice Notice In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved,...shall notify the parent or Indian custodian and the Indian child’s tribe… In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved,...shall notify the parent or Indian custodian and the Indian child’s tribe…

70 Differences of Legal Interpretation Notice Notice Wisconsin [ In re Arianna R.G., 2003]: specific allegations of heritage with an Ojibwa Tribe in Marinette, Wi, where BIA unable to ascertain tribe, was too vague and therefore no notice was required Wisconsin [ In re Arianna R.G., 2003]: specific allegations of heritage with an Ojibwa Tribe in Marinette, Wi, where BIA unable to ascertain tribe, was too vague and therefore no notice was required

71 Differences of Legal Interpretation Notice Notice California App Ct [In re Nikki R, 2003] evidence that child’s paternal great grandparents were Indian was sufficient to require notice California App Ct [In re Nikki R, 2003] evidence that child’s paternal great grandparents were Indian was sufficient to require notice

72 Finally, The end The end But first one last story But first one last story

73 The Wolves Within Author Unknown

74 An old grandfather, whose grandson came to him, angry at a schoolmate who had done him an injustice, said "Let me tell you a story. I too, at times, have felt a great hate for those that have taken so much, with no sorrow for what they do. But hate wears you down, and does not hurt your enemy. It is like taking poison and wishing your enemy would die. I have struggled with these feelings many times."

75 The Wolves Within Author Unknown An old grandfather, whose grandson came to him, angry at a schoolmate who had done him an injustice, said "Let me tell you a story. I too, at times, have felt a great hate for those that have taken so much, with no sorrow for what they do. But hate wears you down, and does not hurt your enemy. It is like taking poison and wishing your enemy would die. I have struggled with these feelings many times."

76 The Wolves Within Author Unknown An old grandfather, whose grandson came to him, angry at a schoolmate who had done him an injustice, said "Let me tell you a story. I too, at times, have felt a great hate for those that have taken so much, with no sorrow for what they do. But hate wears you down, and does not hurt your enemy. It is like taking poison, but wishing your enemy would die. I have struggled with these feelings many times."

77 The Wolves Within Author Unknown An old grandfather, whose grandson came to him, angry at a schoolmate who had done him an injustice, said "Let me tell you a story. I too, at times, have felt a great hate for those that have taken so much, with no sorrow for what they do. But hate wears you down, and does not hurt your enemy. It is like taking poison, but wishing your enemy would die. I have struggled with these feelings many times."

78 The Wolves Within Author Unknown He continued, "It is as if there are two wolves inside me; one is good and does no harm.

79 The Wolves Within Author Unknown He continued, "It is as if there are two wolves inside me; one is good and does no harm. He lives in harmony with all around him and does not take offense when no offense was intended. He will only fight when it is right to do so, and in the right way."

80 The Wolves Within Author Unknown But the other wolf, ah! He is full of anger. The littlest thing will set him into a fit of temper. He fights everyone, all the time, for no reason. He cannot think because his anger and hate are so great. It is helpless anger, for his anger will change nothing. Sometimes it is hard to live with these two wolves inside me, for both of them try to dominate my spirit."

81 The Wolves Within Author Unknown But the other wolf, ah! He is full of anger. The littlest thing will set him into a fit of temper. He fights everyone, all the time, for no reason. He cannot think because his anger and hate are so great. But it is a helpless anger, for his anger will change nothing.

82 The Wolves Within Author Unknown Sometimes it is hard to live with these two wolves inside me, for both of them try to dominate my spirit.

83 The Wolves Within Author Unknown The boy looked intently into his Grandfather's eyes and asked, "Which one wins, Grandfather?"

84 The Wolves Within Author Unknown The boy looked intently into his Grandfather's eyes and asked, "Which one wins, Grandfather?" The Grandfather smiled and said, "The one I feed."

85 Thank-you for letting me visit with you

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