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1 Jill E. Tompkins (Penobscot) Clinical Professor of Law Director, American Indian Law Program University of Colorado Law School Better ICWA Practices:

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Presentation on theme: "1 Jill E. Tompkins (Penobscot) Clinical Professor of Law Director, American Indian Law Program University of Colorado Law School Better ICWA Practices:"— Presentation transcript:

1 1 Jill E. Tompkins (Penobscot) Clinical Professor of Law Director, American Indian Law Program University of Colorado Law School Better ICWA Practices: Recommendations for Improving Compliance with Tribal Notice and Placement Preferences

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3 A.Caseworker B.County District Attorney C.Respondent’s counsel D.Judge E.Other 3

4 How many ICWA cases have you been involved with? A.None B.Less than 3 C.More than 3, but less than 10 D.More than 10 E.What’s ICWA? 4

5 Indian wars (Civil War veterans) Massacres (Sand Creek, many others) Trail of Tears & Broken Treaties Wholesale loss of Indian land Decimation of Indian culture and government First boarding school opened after Custer’s defeat

6 Philosophy of Boarding Schools Gen. Richard Henry Pratt Carlisle Indian School Student Body Pratt was described as, “The red man's Moses" and “An honest lunatic.”

7 “In the White Man’s Image” Start with the children...

8 As he entered Carlisle Boarding School, and shortly after the “reforming process” had begun

9 Evolution of Indian Boarding Schools

10 Lakota Boys Transformation

11 Apache Children on ArrivalFour months later

12 “I am sending you on today’s train an Indian Baby in a papoose carrier. It is “good” and will not keep you awake nights anytime it does not behave stick pins in it and it will be quiet. Watch and wait for it!”— Postcard from Syracuse, 1907

13 Changed their names Hair cut short Prohibited to speak Native languages Christianity forced upon them, Native religion suppressed Stripped of traditional clothing; force to wear uniforms Raised under strict military discipline Under constant surveillance Neglect (starvation) Physical abuse Sexual abuse “Savages” Into the Image of the White Man


15 Bureau of Indian Affairs Boarding School Population

16 Riverside Indian School, Present Day (Longest continually occupied) Riverside Indian School, Anadarko, OK (1871)

17  Native Americans believed to related to a lost tribe of Israel  Came across ocean to America in 600 B.C. lead by prophet “Lehi”  Lehi’s children split into 2 factions  White “good” Nephites  Brown “bad” Lamanites = American Indians  When converted would become “white and delightsome  Thus, great emphasis on converting indigenous people

18  From 1947-1966, foster care program for Indian children  Indian parents “requested” children be placed for educational purposes and so children could be assimilated  In 1977, in response to criticisms, commission investigated whether Indian parents being coerced into program  Benign motives: improved educational and economic opportunity  Critics believe program undermined Native American identity  LDS failed to recognize spiritual aspect of Indian identity  Later study showed lack of bonding of children with foster families and low rate of conversion

19 The “wholesale removal of Indian children from their homes... is perhaps the most tragic aspect of Indian life today...” --1974 Senate Committee Hearing

20 Which of the following is true? A.25 to 35% of all Indian children were being removed from their families B.85% of removed Indian children were placed in non-Indian homes C.In Minnesota, 1 in 4 Indian children under the age of one were removed and adopted by non-Indians D.All of the above 20


22 Foster care placement of Indian Children

23 Adoptions of Indian children under the age of one year

24 Standards for removal Very few (less than 1% in North Dakota) for physical abuse 99% of cases based on “neglect” or “social deprivation” Misunderstanding of Indian Extended Family Dynamics Leaving a child with relative seen as irresponsible or neglectful Ignorance of cultural traditions (e.g. grandparents to raise child as the norm)

25 South Dakota Dept. of Public Welfare petitioned to terminate Sisseton- Wahpeton mother’s rights Grounds: 4 year old son sometimes left with 69-year old great-grandmother Caseworker admitted child was well- cared for But added that the great-grandmother “is worried at times ”

26 Ignorance of child rearing practices Child seen as “running wild” Parents seen as being “permissive” Different but effective way of parenting as a community Reservation conditions Poverty, poor housing, overcrowding, lack of modern plumbing, etc. Tribes forced onto reservations at gunpoint, prohibited from leaving without a permit. Now Indian parents told that they live in a place unfit to raise their children

27 Blossom’s mother asked her aunt to take her from Rosebud Reservation to California Mother was to follow State tried to use poverty against the mother Week after Blossom arrived, social workers placed her in a pre- adoptive home No evidence mother was unfit Social workers asserted that an Indian reservation was an unsuitable environment and the pre-adoptive parents could financially provide a superior home and way of life Counsel was able to return Blossom to her mother

28 Judges also lacked cultural knowledge Lacked a clear standard of abuse or neglect Discriminatory standards made it virtually impossible for Indians to be foster or adoptive placements Modest means but could still provide excellent care Lack of licensed Indian foster homes still exists in Colorado and nationally Non-Indians still furnish almost all Indian child placements

29 Neither Indian parents or children represented by counsel Rare to have expert witness testimony Often used voluntary waivers so that Indian parents could obtain welfare Coerced waivers of custody later used to support termination petition BIA & HEW gave economic incentives to state agencies for foster care In Wisconsin (1969), Indian children 70% of foster care placements but only 8% of adoptions (payments stop)

30 National Public Radio: “All Things Considered” Native Foster Care: Lost Children, Shattered Families Recent 3-part investigation in South Dakota

31 South Dakota Today

32 Actually worse now than pre-ICWA!

33 New Mexico Disproportionality 18 th in the Nation 10.3% of child population 9.8% of foster care South Dakota, 6 th Minnesota, 1 st Nationally, American Indian children are 1.2% of general population but 2.6% of foster care population

34 Francesca “Split Feather” Syndrome “Lost Birds” Impact on Parenting

35  “Most of the people who were being given Indian children were well-meaning, some were not.” 35 “I have heard it said that an Indian child being raised by a non-Indian is like a swan trying to raise an eagle.” --Tina Albert

36 Long-term psychological damage suffered by an Indian child from placement in a non-Indian foster or adoptive home. Study of 20 Indian (First Nations) adult foster children or adoptees. By Carol Locust.

37  Depression  Alcoholism & substance abuse  Aggressive behavior  Poor self-esteem (discrimination)  Lack of purpose in life  Poor educational and work performance  Lack of connection and place in the world  Poor interpersonal relationships 37

38 38  19 of 20 were repatriated  Education and employment greatly improved  Personal lives improved dramatically

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40 The father of girl who is the subject of a D & N proceeding is of Navajo ancestry. Both the father’s parents are full-blooded. His daughter’s mother is non-Indian. Navajo law states that a child who is born to a member and has ¼ Navajo blood is a member and eligible for enrollment. Is this an “Indian child”? A.Yes B.No

41 Sarah, age 15, broke into a neighbor’s apartment and spent the night there. When the neighbors arrived home, they called the police. Sarah was charged with breaking and entering. Does ICWA apply? A.Yes B.No 41

42 The police subsequently learn that Sarah broke into the apartment because her single mom had gone out drinking and locked her out of her own apartment. Sarah’s mother frequently leaves her alone and Sarah must fend for herself. Does ICWA apply? A.Yes B.No 42

43 At the first interview with the parents, there’s no indication that the child is an Indian child. Is that all the caseworker must do to comply with ICWA? A. Yes B. No 43

44 The parent in a D & N case denies any Indian heritage. Caseworker hears from a neighbor that the parent previously mentioned family living on a South Dakota reservation. Must the caseworker follow up? A.Yes B.No 44

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46 A tribe enrolls a child. Judge learns through testimony that the child may lack enough blood quantum under tribal law. Whose decision? A.Tribe’s B.Judge’s 46

47 A tribe moves to transfer a case that has been open for over a year. Originally the plan had been to reunify the children with their father. Father is now being deported and Indian mother has not participated in the case. Should the judge grant the transfer petition? A.Yes B.No 47

48 In 2005, the GAO conducted a survey of ICWA compliance. Which was found true? A.Lack of funding has prevented tribes from transferring cases B.States are diligent about maintaining ICWA case data C.GAO said there was no need for a central reporting agency D.Indian children spent more time in the system 48

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50 Which of the following are reasons tribes don’t intervene? A.Tribes can’t afford to send representative or attorney B.Tribe may be satisfied with proposed path of case C.Child[ren]’s family lacks close ties to reservation community D.All of the above 50

51 Consent to a foster care placement must be done in writing in front of the judge. Will a Colorado inmate ever be able to effectively consent? A. Yes B. No 51

52 It is the tradition in the child’s tribe that if a parent can’t care for the child the maternal relatives must. Child has a maternal great- aunt (67) and a paternal uncle (36) who want placement. Where should the child be placed? A.Uncle B.Great-aunt 52

53 Does your office/agency maintain a clear separate record of a child’s every placement? A. Yes B. No C. Not applicable 53

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55 How difficult have you found it to locate Indian foster homes in New Mexico? A. Never had to try B. Not very difficult C. Very difficult D. Nearly impossible 55

56 Must a court invalidate an adoption of an Indian child that has been in place for over a year if it is established that the tribe did not receive notice of the motion to terminate parental rights? A. Yes B. No 56

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58 Which of the following is true for you? A.I’ve been involved in a case where a CCA was used B.Never had a case involving a CCA but would consider in future C.I think CCA’s are a bad idea 58

59 59 on/Program.cfm?Program=28

60 60 Jill and Uncle Dale Lolar at a scholarship run on Indian Island, Penobscot Indian Nation reservation, Maine

61 How much do you think you learned today about ICWA in Colorado cases A.A great deal B.Some new things adding to what I already knew C.Nothing really, I knew it all D.Nothing. I should teach the next ICWA training. 61

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