ICWA The Tribe as the “Third Parent”

Why ICWA? Wabanaki people are indigenous to the land that is now the State of Maine. In 15 th century there were over 20 tribes and over 32,000 members of the Wabanaki Confederacy Today there are only 4 tribes left: Passamaquoddy Penobscot Micmac Maliseet

Congress recognizes the special relationship between the United States and Indian Tribes United States, through statutes, treaties and working with Indian Tribes assumes the responsibility for the protection and preservation of Indian Tribes and their resources There is no resource that is more vital to the continued existence and integrity of Indian Tribes than their children

As a trustee, the United States has a direct interest in protecting Indian children who are members of or are eligible for membership 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.

Background History BIA started 130 years ago as a part of the War Department. BIA play a major role in two major policies that affect Native Americans. Boarding School 1880’s – 1950’s Indian Adoption Act1950’s – 1970’s

Boarding Schools Established to “solve the Indian problem” Removed children from the reservation and placed them in government boarding schools and mission schools. Taught to eat, sleep, dress, play, work and to think in the manner of the white man. Severe punishment to those who did not comply.

Boarding Schools cont. Children were kept away from their families during holidays and summer vacations by placing them in Caucasian families in what was called the “outing system” Rules were to speak only English, stay in line, wear only uniform, do not question authority, maintain silence, and work. If families resisted, food and clothing were withheld. Mid 1930’s boarding schools began to close and were replaced with reservation day schools.

Indian Adoption Project Collaborative effort between BIA and CWLA Goal was to remove Indian children whose parents were deemed unable to care – by dominant society’s standards. During this time period approximately 395 Indian children removed from their homes were adopted.

Indian Adoption (cont) All Indian children were placed in non-indian homes. Philosophy: If you want to solve the Indian problem you can do it in one generation. You can take all of their children of school age and move them bodily out of the Indian country and transport them to some other part of the United States. Where there are civilized people... If you take these kids away and educate them to make their own lives, they would not come back here (Rogers, 1950)

What is ICWA? Federal Law passed in 1978 Guide states must follow in their process of placement of Indian children during state child custody hearings. Gives Indian Tribes the right to be involved in deciding what should happen for Indian Children who may be placed in foster care or adoptive placements.

Mandates that states make active efforts in every ICWA case to: 1. Provide services to the family to prevent removal of an Indian child from his/her parent or Indian custodian. 2. To reunify an Indian child with his/her parent or Indian custodian after removal.

Active Efforts Active and early participation and consultation with the child’s tribe in all case planning decisions.

Active vs. Reasonable efforts Reasonable: referral for services Active: arrangement of best fitting services for the family and to assist those families in active engagement in those services. These apply whether or not the child’s tribe is involved in the custody proceeding.

Definitions Indian: any person who is a member of a federally recognized American Indian tribe or Alaska Native village. Indian child: any unmarried person who is under the age of 18 and is (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

Extended family member: defined by law or custom of the Indian child’s tribe or in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.

Parent: any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom.

Exclusive Jurisdiction An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation. In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation, shall transfer such proceeding to the jurisdiction of the tribe, absent objection of either parent

In any State court proceeding, for foster care placement of, or termination of parental rights to, the Indian custodian and the Indian Tribe shall have the right to intervene at any point in the proceeding.

Notice of Court Proceedings In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking foster care placement or termination of parental rights, shall notify the parent or Indian custodian and the Indian child’s Tribe, by registered mail with return receipt requested, of pending proceedings and their right to intervention.

If the identity of the Indian parent, custodian or tribe cannot be determined, such notice shall be given to the Secretary of the Interior.

Placement of Indian Children Adoption placement ; preferences 1. member of the child’s extended family 2. other members of the Indian child’s tribe, or 3. other Indian families

Foster care or preadoption placements; criteria; preferences any child accepted for foster care or pre-adoptive placement shall be placed in the least restrictive setting which most approximates a family and in which any special needs may be met. The child shall also be placed within reasonable proximity to his/her home. Preference shall be given, in absence of good cause to:

1. Member of the Indian child’s extended family 2. Foster home licensed, approved, or specified by the Indian child’s tribe 3. An Indian foster home licensed or approved by an authorized non-indian licensing authority 4. An institution for children approved by an Indian Tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs.

Tribal resolution If the Tribe establishes a different order of placement by Tribal resolution, the agency or court effecting the placement shall follow such order so long as the placement is the least restrictive setting appropriate to the particular needs of the child.

Emergency Removal Emergency removal of an Indian child who is a resident of or is domiciled on reservation, but temporarily located off reservation, from his parent or Indian custodian, under applicable state law, in order to prevent imminent physical damage or harm to the child.

Numbers (2007) Colorado North Dakota Utah Washington State Iowa Nebraska Minnesota Oregon