ICWA: Purposes, Procedures & Practice Implications Prepared by: Jerry R. Foxhoven, Executive Director, Drake Legal Clinic Director, Middleton Center for Children’s Rights Drake University Law School

 1/4 - 1/3 of All Native American Children Removed.  5 X the Rate of Non-Native Families.  State Version: Because Federal Law Seemed Ignored.

APPLICATION OF ICWA: Must be a “Child Must be a “Child Custody Proceeding.” Custody Proceeding.” Must be an “Indian Must be an “Indian Child.” Child.”

“Child Custody Proceeding” Includes: Foster Care Placement; Foster Care Placement; TPR; TPR; Pre-adoptive Placement; Pre-adoptive Placement; Adoptive Placement. Adoptive Placement.Excludes: Delinquency Cases; Delinquency Cases; Divorce Cases. Divorce Cases.

Must be an “Indian Child” Unmarried. Unmarried. Under 18. Under 18. Member of a Recognized Member of a Recognized Tribe (550) or Eligible for Membership. Federal: Only 1 Tribe (Most Significant Contacts) But Contacts Not Required. Federal: Only 1 Tribe (Most Significant Contacts) But Contacts Not Required. TRIBE’S DETERMINATION IS CONCLUSIVE!

Iowa’s Additional Interpretation of “Indian Child” More than 1 Tribe Possible. More than 1 Tribe Possible. Constitutional? Constitutional? “Child of the Tribe’s Community”. “Child of the Tribe’s Community”. In re A.W.: UNCONSTITUTIONAL. In re A.W.: UNCONSTITUTIONAL.

Determining Status of the Child Exclusively a Tribal Question. Exclusively a Tribal Question. If Tribe does not, the Court shall “as soon as practicable.” If Tribe does not, the Court shall “as soon as practicable.” Deemed to Know if “Court or any party”: Deemed to Know if “Court or any party”: Was informed. Was informed. Child gives reason to believe. Child gives reason to believe. Child’s residence or domicile is Child’s residence or domicile is “predominantly Indian community.”

Under Age 18 Judicial or Tribal Determination A Child Custody Proceeding Unmarried Tribal Member or Eligible for Membership APPLICABLITY OF ICWA

 Responsibility: Person Initiating Action.  Registered Mail, Return Receipt Requested.  To: Parents, Indian Custodians AND Tribe.  Alternative: Secretary of Interior.

Notice Particulars Notice Contents: See 232B.5 (7)-(9). Notice Contents: See 232B.5 (7)-(9). Hearings: All Hearings, Including Reviews. Hearings: All Hearings, Including Reviews. When: Whenever Applicability Discovered. When: Whenever Applicability Discovered. Result: Jurisdictional; Strictly Applied. Result: Jurisdictional; Strictly Applied.

Rights of Parties Delay of at Least 10 days After Receipt. Delay of at Least 10 days After Receipt. May Request 20 Days More. May Request 20 Days More. Indigent Parents or Indian Custodians: Right to Court Appointed Attorney. Indigent Parents or Indian Custodians: Right to Court Appointed Attorney. Review of Documents or Reports. Review of Documents or Reports. Iowa: Child Gets Attorney. Iowa: Child Gets Attorney. Tribe Representation: Need Not be Attorney. Tribe Representation: Need Not be Attorney.

Transfer to the Tribe Transfer to the Tribe Exclusive Jurisdiction if Child on Reservation. Exclusive Jurisdiction if Child on Reservation. Unless Parent Objects, Court Must Transfer if Requested. Unless Parent Objects, Court Must Transfer if Requested. Federal Act: Both Parents have VETO power. (Iowa: If inconsistent with Act. Constitutional??) Federal Act: Both Parents have VETO power. (Iowa: If inconsistent with Act. Constitutional??) Tribe has Right to Decline Transfer. Tribe has Right to Decline Transfer.

Good Cause for Refusal to Transfer Federal and State differ some. Federal and State differ some. But see: In re: J.L., L.R. and S.G. – unconstitutional not to let child object. But see: In re: J.L., L.R. and S.G. – unconstitutional not to let child object. Bonding with Non-Indian Custodian ≠ Good Cause. Bonding with Non-Indian Custodian ≠ Good Cause. Lateness in Proceedings ≠ Good Cause. Lateness in Proceedings ≠ Good Cause. Best Interest of Child ≠ Good Cause. Best Interest of Child ≠ Good Cause.

Evidentiary Requirements Foster Care Placement: Foster Care Placement: Clear & Convincing Evidence Clear & Convincing Evidence Testimony of Expert Witnesses Testimony of Expert Witnesses Likely to Result in Physical or Emotional Damage. Likely to Result in Physical or Emotional Damage.

Evidentiary Requirements T.P.R.: T.P.R.: Beyond a Reasonable Doubt. Beyond a Reasonable Doubt. Testimony of Expert Witnesses. Testimony of Expert Witnesses. Likely to Result in Serious Physical or Emotional Damage. Likely to Result in Serious Physical or Emotional Damage.

Reasonable vs. Active Efforts Provide Remedial Services & Rehabilitative Programs. Provide Remedial Services & Rehabilitative Programs. Reflect Prevailing Social & Cultural Values, Conditions, & Way of Life of Tribe. Reflect Prevailing Social & Cultural Values, Conditions, & Way of Life of Tribe. Utilize Available Resources of Family, Tribe Indian Social Services Agencies, and Individual Indian Caregivers. Utilize Available Resources of Family, Tribe Indian Social Services Agencies, and Individual Indian Caregivers.

Active Efforts More Than Reasonable Efforts. More Than Reasonable Efforts. Specific Examples in the Code B.5(19). Specific Examples in the Code B.5(19).

Placement Preferences For Adoptions: For Adoptions: (1) a member of the child’s extended family; (1) a member of the child’s extended family; (2) other members of the child’s extended family; (2) other members of the child’s extended family; (3) other Indian families.” (3) other Indian families.”

Placement Preferences For Non-Permanent Placements: (i) a member of the extended family; (i) a member of the extended family; (ii) a foster home licensed, approved, or specified by the tribe; (ii) a foster home licensed, approved, or specified by the tribe; (iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; (iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; (iv) an institution for children approved by an Indian tribe or operated by an Indian organization. (iv) an institution for children approved by an Indian tribe or operated by an Indian organization.

Previously Submitted Questions Should we be concerned about ICWA in “DHS Eligible” Cases? Should we be concerned about ICWA in “DHS Eligible” Cases? ICWA does apply (active efforts to prevent removal). ICWA does apply (active efforts to prevent removal). Notice is not necessary (yet). Notice is not necessary (yet). Since removal is possible, prepare now. Since removal is possible, prepare now.

Previously Submitted Questions What happens when ICWA & Safe Haven Collide? What happens when ICWA & Safe Haven Collide? ICWA Always Trumps Everything Else (Even ASFA). ICWA Always Trumps Everything Else (Even ASFA). Iowa’s Statute Conflicts (voluntary TPR & Adoption). Iowa’s Statute Conflicts (voluntary TPR & Adoption). Iowa’s Statute Found Unconstitutional. (In re: N.N.E.). Page 3 of outline. Iowa’s Statute Found Unconstitutional. (In re: N.N.E.). Page 3 of outline. Safe Haven Prevails. Safe Haven Prevails.

Previously Submitted Questions What is all this talk about the “footnote” to the A.W. decision? What is all this talk about the “footnote” to the A.W. decision? 7 Even in the juvenile court, the county attorney does not have the exclusive authority to represent the interests of the State. Section (2) indicates that in instances of “disagreement between the department [of human services] and the county attorney regarding the appropriate action to be taken [in matters pending before the juvenile court], the department may request to be represented by the attorney general in place of the county attorney.” The statute thus recognizes that, as they are representatives of the same interests, when conflicts arise between the attorney general and a county attorney regarding the prosecution of a CINA matter, the attorney general shall represent the State’s interest even in the juvenile court.

Previously Submitted Questions How Does DHS’ Emphasis on Relative Placement Affect ICWA? How Does DHS’ Emphasis on Relative Placement Affect ICWA? It May Help: Placement with Native Family members. It May Help: Placement with Native Family members. It May Hurt: May Violate Placement Preferences and Active Efforts. It May Hurt: May Violate Placement Preferences and Active Efforts.

Previously Submitted Questions What Constitutes ‘Good Cause’ to Deny Transfer to the Tribe? What Constitutes ‘Good Cause’ to Deny Transfer to the Tribe? Federal Act: 5 specifics (nonexclusive). Federal Act: 5 specifics (nonexclusive). State Act: Only 4 (all on page 11). State Act: Only 4 (all on page 11). Excludes Lateness in Proceeding. Excludes Lateness in Proceeding. Excludes Objection by Child over 12 (found unconstitutional). Excludes Objection by Child over 12 (found unconstitutional). Excludes Child over 5 w/o Tribal Contacts. Excludes Child over 5 w/o Tribal Contacts. May be Unconstitutional. May be Unconstitutional.

QUESTIONS???

CONTACT INFORMATION: Jerry Foxhoven, Director Middleton Center for Children’s Rights Drake University Law School 2400 University Avenue Des Moines, Iowa