The Indian Child Welfare Act: Have Child Welfare Issues Improved in Indian Country? 19th Annual Multi-Jurisdictional Law Enforcement Conference Green Bay, Wisconsin, Nov. 8, 2007 Presented by: Attorney Paul Stenzel – Stenzel Law Office November 8, 2007

Part I: History and Purpose of the Indian Child Welfare Act Part II: Effectiveness of ICWA Part III: Issues Part IV: Questions & Discussion

History & Purpose From the late 19 th century to the mid 1970s, Indian families were subjected to various forces which negatively impacted the family unit: –Allotment Act –Assimilation –Termination

Carlisle Indian School ca. 1900

History & Purpose By the 1960s there was a recognition that Indian families were being broken apart at an alarming rate due to state social service departments removing children and placing them in non-Indian homes.

History & Purpose Studies in 1969 and 1974 showed that 25% to 35% of all Indian children had been separated from their families and placed in adoptive families, foster care, or institutions.

History & Purpose The same studies found that in the State of Minnesota one in eight Indian children under the age of 18 was in an adoptive home, and during nearly one in every four infants under one year of age was placed for adoption.

History & Purpose In Wisconsin the risk of being separated from their children was 1,600% greater for Indians.

History & Purpose 90% of the Indian placements were in non- Indian homes.

History & Purpose In South Dakota, 40 percent of all adoptions by the State were of Indian children, yet they made up only 7% of the population.

History & Purpose Congressional hearings demonstrated the tremendous harm that had come to Indian families, tribes and children. The ICWA was passed to prevent it from happening in the future.

History & Purpose “Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.” Holyfield, 490 U.S. at 34 (quoting, Chief Isaac, hearings in front of the Lands of the House Committee on Interior & Insular Affairs, 95th Cong., 2d Sess., at 193 (1978)).

History & Purpose Without ICWA, the best interest of the child standard, as defined by the mainstream culture, fails to take into account Tribes’ unique culture. The ICWA, by providing for intervention and an order of placement preferences, essentially added new elements to the best interest of the child standard which recognize tribal interests.

History & Purpose ICWA sought to do three things: 1. Keep Indian children with their families. 2. Defer to tribal judgments and decisions about custody of Indian children. 3. If Indian children must be removed from their families, they should be placed with members of their extended family or members of their Tribe.

Effectiveness The Act is still a positive and needed law. –Issues are with application and compliance. The Act has improved placement of Indian children with Indian families. The Act has raised awareness among state social workers.

Effectiveness South Dakota study: –Lack of consistency in identifying Indian children: In 15% of the records reviewed, no documentation existed of how the court or DSS determined that the child was Indian. –Untimely notice to Tribes 13% of the time. –45% of the files reviewed did not clearly indicate whether ICWA preferences were being followed.

Effectiveness Alaska A study in the early 1990s revealed that in involuntary cases of relinquishment of Indian parental custody where notice to the tribe is required under ICWA, State social workers notified tribes in only 47.3 percent of cases reviewed. The State notified tribes in only 77.8 percent of cases prior to termination of parental rights

Effectiveness NEBRASKA STATEWIDE ASSESEMENT: » 68% of records reviewed did not include documentation of steps taken to determine whether the child was an Indian child within the meaning of the Act » Documentation indicating a finding of “clear and convincing evidence” for placement of an Indian child was absent in 78% of case records reviewed » When developing a case plan, P&S Workers did not include the parent/custodian or the use of tribal or community resources in 64% of cases

Effectiveness Nebraska (cont’d) » Cultural conditions and way of life of the child’s tribe or Indian community were considered in only 33% of the case plans reviewed » Workers from most Service Areas do conduct a “diligent search” in order to comply with placement preference which includes contact with the Tribe’s social services program in 54% of cases reviewed Neb. Health & Human Servs. Sys., Child and Family Servs. Review Statewide Assessment, May 2002, at 1–113 available at

Effectiveness Minnesota: 11.5% of foster care population is American Indian; 1.6% of general population is American Indian As a percent of placements of American Indian children, from 2002 through 2005, the average rate of American Indian children in relative foster care was 20.2 percent. Statewide rate during the same period was about 16%

Effectiveness Minnesota and Tribes there agreed to definition of active efforts: “Active Efforts” means active, thorough, careful, and culturally appropriate efforts by the LSSA to fulfill its obligations under ICWA, MIFPA, and the DHS Social Services Manual to prevent placement of an Indian child and at the earliest possible time to return the child to the child's family once placement has occurred. (25 U.S.C § 1912(d)). Minnesota State/Tribal Agreement on Indian Child Welfare

Effectiveness IOWA state law: Active efforts shall include but are not limited to all of the following: a. A request to the Indian child's tribe to convene traditional and customary support and resolution actions or services. b. Identification and participation of tribally designated representatives at the earliest point. c. Consultation with extended family members to identify family structure and family support services that may be provided by extended family members.

Effectiveness (Iowa Active Efforts (cont’d)) d. Frequent visitation in the Indian child's home and the homes of the child's extended family members. e. Exhaustion of all tribally appropriate family preservation alternatives. f. Identification and provision of information to the child's family concerning community resources that may be able to offer housing, financial, and transportation assistance and actively assisting the family in accessing the community resources. Iowa Code § 232B.5(19)

Issues ICWA does not require notice to Tribes in voluntary proceedings. ICWA does not require notice to Tribes in adoptions.

Issues Lack of (timely) notice to Tribes Lack of identification of Indian children Lack of Indian foster homes Lack of active efforts Lack of counsel in CHIPs proceedings

Issues Adoption and Safe Families Act (ASFA) –“15 of 22” requirement; can be an issue when notice not given timely to Tribe. –ASFA requires reunification efforts, but States relieved from that requirement in certain situations; –ASFA does not pre-empt ICWA (In re. J.S.B., 2005 SD 3, 691 N.W.2d 611 (2005)).(Court reject argument that ASFA trumped ICWA active efforts requirement where father had a documented history of abuse and neglect.)

Issues Existing Indian Family doctrine –Some courts have made exceptions to the application of ICWA by finding that the despite an Indian child’s membership in a tribe, the Act was not intended to apply when a family has no apparent cultural ties to a Tribe. Trend is moving towards rejection of this unjustified doctrine. Doctrine was essentially rejected in Holyfield v. Mississippi, 490 U.S. 30 (1989)

Issues Safe haven for dropping off newborns (e.g. Wis. Stat ) –Conflicts with 10-day requirement under 25 USC 1912(a) –No determination of membership

Issues There have been efforts to amend the Act to address some of these issues. The effort in 1996 probably came the closest to enactment. –Controversy arising in private adoptions –The Rost case (In re Bridget R., 40 Cal. Rprt. 2d 507 (1996)). –“The hearings … demonstrated that avoidable and prolonged litigation over the application of ICWA needlessly destabilizes some Native American adoptions.” (House Report )

Q&A Ideas for improvement: Mandatory training for social workers Better screening tools to ID Indian children at intake More tribal – state interaction More education for judges, prosecutors, attorneys and social workers

Q&A Possible amendments to ICWA: –Clarify EIF doctrine is not allowable –Clarify ASFA does not pre-empt ICWA –Define active efforts –Require notice to tribe in voluntary proceedings and adoptions –Address safe haven laws for dropping off newborns

Q&A What are the issues in your jurisdiction? What are your success stories? What could be done to improve compliance with the ICWA? What amendments, if any, are needed to ICWA? What have been your experiences with the Act in different jurisdictions?

Attorney Paul Stenzel PO Box Shorewood, WI