1. Bay Area Academy Core Training
Indian Child Welfare Act (ICWA)
Adapted from curriculum developed by Judge Christine Williams and Tribal Star’s “The Other Side of ICWA: A Cultural Journey to Fairness and Equity”

2. Learning Objectives
To be aware of and recognize Native American’s experience with historical trauma and cumulative collective trauma.
Know what is ICWA: the “spirit” of ICWA vs. the legal requirements of ICWA.
Know how to honor the “spirit” of ICWA.
Know how to meet the legal requirements of ICWA, including the 2015 BIA ICWA updates.

3. What is ICWA? Federal law passed in 1978, and updated in 2015.
Established minimum federal and best practices standards that must be applied in state child custody proceedings involving Indian children.
Acknowledges and implements the tribes right to intervene in state child custody proceedings.
Shifts legal presumption
From: Indian children are better off growing up outside their community.
To: It is essential for the survival of Tribes and tribal people that Indian children grow up in the Indian community.
ICWA is applicable “unless and until it is determined that the child is not a member or is not eligible for membership in an Indian tribe.”
Political v. Racial distinction

4. Historical Trauma
De-culturization of tribal societies: 217 years of U.S. policies and efforts of extermination, assimilation, taking of land, forced dependency, disruption of family child rearing practices, child removal to boarding schools, and negative stereotyping.
Defined: “A cumulative emotional and psychological wounding over the lifespan and across generations, emanating from massive group trauma experiences.”

5. “That a war of extermination will continue to be waged between the races, until the Indian race becomes extinct, must be expected. While we cannot anticipate this result but with painful regret, the inevitable destiny of the race is beyond the power or wisdom of man to avert.” California Governor Peter H. Burnett January 7, 1851

6. Unseen Tears: The Native American Boarding School Experience in Western New York Part 1
Native American families in Western New York and Ontario continue to feel the impact of the Thomas Indian School and the Mohawk Institute. Survivors speak of traumatic separation from their families, abuse, and a systematic assault on their language and culture. Western New York Native American communities are presently attempting to heal the wounds and break the cycle inter-generational trauma resulting from the boarding (residential) school experience. Unseen Tears documents the stories of boarding school survivors, their families, and social service providers.

7. Group Activity
Imagine a child or children you know (your own, niece, nephew, cousin, friends’ children) is suddenly taken away without cause or explanation.
They’re taken to somewhere you don’t know, have no way to contact them, and you have no way of knowing how they’re doing.
You do know they’re being raised by people who don’t speak the same language, eat the same food or share the same values and cultural traditions.
What are your thoughts as the adults? Feelings?
What are your thoughts as the child? Feelings?
In no way does this exercise attempt to compare one person’s experience with the long history of trauma experienced by the Native American people nor to minimize the effects of the cumulative experience. This exercise is designed to explore one’s own experience with trauma and how it has impacted the trainee or their family over time. It is important for the trainer to allow trainees to elect not to share an experience that will result in difficulties both during or after the training. Or if someone considers themselves to be high-risk for re-traumatization through this activity (includes listening to someone else’s story), they should be allowed to step out of the room for a few minutes.

8. Early U.S. Indian Child Welfare
THE BOARDING SCHOOL ERA – PRE ICWA
“Kill the Indian save the man.”
Richard H. Pratt, founder of the first Indian boarding school, Carlisle Indian Industrial School

9. Indian Adoption Project
1958 – Federal Indian Adoption Project
In 1961 the BIA funded care for 2,300 children through removal, foster placement, and eventual adoption
States followed this federal example

10. Congressional Findings
Nationally:
Indian children 3 times more likely than non-Indian to be placed for foster care or adoption
About 25-35% of Indian children had been removed from homes and placed in foster homes, adoptive homes, or institutions
In California:
8 times as many Indian as non-Indian children were in adoptive homes
90 % of these Indian children were in non-Indian homes
Indian children who had been placed in non-Indian adoptive homes frequently suffered serious adjustment and acceptance problems. Conclusion: Legal means were necessary to make sure these practices were stopped.

11. ICWA IN CALIFORNIA JUVENILE DEPENDENCY SYSTEM
Where are we now?
ICWA IN CALIFORNIA JUVENILE DEPENDENCY SYSTEM

12. Adoptive Couple vs. Baby Girl
Voluntary adoption case of child of unwed non- Indian mother and Cherokee Nation father
United States Supreme Court overturned South Carolina Supreme Court decision to return Baby Girl to father under ICWA
Heightened standard of proof for TPR and active efforts not applicable for FA with no prior legal or physical custody
Cal-ICWA
Case Law not applicable as CA law would deem father as presumed, and therefore with legal rights

13. Indians in CA Today
110 Federally Recognized Tribes (almost 80 petitioning)
44 terminated tribes that have not been re-recognized
Largest number of Indian people
Majority from out of state tribes
California’s tribes are everywhere throughout the state.
California has the highest Native American population in the country. According to the 2010 U.S. Census, California represents 12 percent of the total Native American population (approximately 720,000) identified themselves as Native American.

14. CA Historic Timeline 1769-1823: Mission Era 1848: Gold Rush
1851: CA First Governor’s Extermination Speech
: 18 Treaties
1905: Secrecy finally lifted
1906: Congress funds purchase of 100 “Rancherias”
1934: IRA Rancherias = Tribes
1948: Relocation
1958: California Rancheria Act
1967: Tribes sue to regain federal recognition

15. Indian Children in CA Foster Care Today
Native American children are the 2nd most over-represented population
Majority of out of home placements recorded are not in compliance with ICWA

16. Indian Child Placement 2014 Statistics
CWS/CMS Statistics from California Child Welfare Indicators Project (CCWIP), Center for Social Services Research (CSSR):
Point in time count at end of first quarter
ICWA Eligible Children
April 07 CWS CMS Data Report

18. 2014 Disparity Indices Per CCWIP Ethnicity In Care (n) In Care (%)
Child Population (n)
Child Population (%)
Total
54,598
100
9,097,971
Black
11,693
21.44
487,981
5.62
White
12,756
23.39
2,465,851
28.4
Latino
28,130
51.58
4,675,027
53.85
Asian/P.I.
1,180
2.16
1,017,657
11.72
Nat Amer
773
1.42
35,119
0.4
Multi-Race/Missing 66
416,336

19. California’s ICWA
Fed ICWA provides for optional/additional State Protections
SB 678 passed in 2006 in response to continuing lack of compliance with ICWA nearly 30 years later
Implemented ICWA into CA codes
WIC, Family & Probate
Judicial Council Rules and Forms in response to legislation

20. Practical Application
Legal Requirements
Practical Application

21. Minimum/Best Practices Federal Standards & California State Standards
Inquiry
Notice
Jurisdiction/Membership Determination
Active Efforts
Evidentiary requirements
Qualified Expert Witness
Placement Preferences

22. Judicial Council Forms
JV 100: Petition
ICWA 005: Info Sheet on inquiry attachment and notice
ICWA 010A: Inquiry Attachment
ICWA 030: Notice
ICWA 020: Parental Indian Status
ICWA 040: Tribal Intervention (optional tribal use)
ICWA 050 & 060: Transferring Case to Tribal Court

23. Pre-Petition Requirements
Inquiry & Notice

24. Indian Child Member of a tribe or identifies as Indian
Eligible for membership and biological parent is a member
Tribal determination is conclusive
Tribes create their own membership criteria and process
No requirement based on degree of contact, blood quantum, and criteria for determining membership/eligibility in case of multiple tribes
What if child identifies as Indian but isn’t eligible?

25. Inquiry Judicial Council Form: JV 100 – § 300 Petition
Judicial Council Form: ICWA-010(A) – Indian Child Inquiry Attachment
The court and the social worker have duty to ask whether the child may be an Indian child, and to record this information on the Inquiry Attachment Form
Must be filed with every 300 & 600 Petition
Inquiry on the record and even for voluntary or non-detention cases.

26. Active Efforts
Social worker must make active efforts to provide services and programs designed to prevent the breakup of the Indian family.
The services should be appropriate to the prevailing social and cultural values and way of life of the Indian child’s tribe.
The case plan must incorporate extended family, the tribe, Indian social service agencies, and individual Indian caregivers.
Social worker must provide evidence that active efforts have been made and were unsuccessful prior to court ordering Foster Care or Adoption = pre- placement preventative services
See handout for specific examples

27. Notice
If there is reason to know the child is an Indian child (i.e., family names tribe or tribes).
At minimal, must be sent via registered mail with return receipt requested (best practices: may also be personal service or electronically) to:
parent
legal guardian
Indian custodian
child’s tribe
BIA
Should be sent ASAP – Must be received by tribe 10 days prior do Jurisdiction hearing

28. Notice Procedure
Judicial Council Form: ICWA-030 – Notice of Child Custody Proceeding for an Indian Child.
Notice must comply with WIC
Tribe(s) must RECEIVE notices 10 days prior to Jurisdiction hearing.
CDSS maintains lists for service and contact info at:

29. Noticing Issues Questions about noticing?
Many cases are overturned on appeal in CA due to improper notice
Causes problems for children:
Delays some cases for children involved
Takes the focus off of the rest of ICWA compliance
Questions about noticing?

30. Court Proceedings After Filing
Detention Hearing, Jurisdiction/Disposition

31. Work With the Tribe
Tribes are entitled to intervene and transfer jurisdiction at any time.
Tribe may designate anyone to serve as their representative for the case
May be an attorney (paid by the tribe)
Often will not be an attorney.
Tribes may chose not to intervene right away for different reasons
You can still work with the tribe.

32. Culturally Appropriate Case Plan
Services designed for American Indian children and families
Offered by tribes or other agencies
American Indian Specific Services:
Health Centers
Substance Abuse programs
Tribal TANF
Tribal CASA’s

33. Inquiry and Cultural Case Planning
How do you create a culturally appropriate case plan for Mother and Father?
What questions will you ask the family?
Who will you ask?

34. Locating Resources & Services
Internet
Many tribes have their own website
CDSS maintains lists for service and contact info at:
AOC website list of resources:
BACAIR: Bay Area Collaborative of American Indian Resources
Statewide ICWA workgroup
Diana Orcino:

35. Video Presentation FACES: Implementing the Indian Child Welfare Act
American Indian Enhancement Project – Toolkit
KFKGs

36. Secure Child’s Tribal Membership
Tribes have the exclusive right to determine their membership.
Membership requirements vary from tribe to tribe and are subject to change.
Work with tribe’s child welfare department or membership department or in some cases the tribal council directly to follow process for membership.
Tip: Great task for a CASA to take on.

37. Qualified Expert Witness – WIC 224.6 & 361.7(c)
Before the court orders foster care, guardianship or TPR, QEW must testify:
that continued custody by parent or Indian custodian is likely to result in serious emotional or physical damage.
Can not be an employee of the person or agency seeking the foster care placement.
Must be live testimony unless the parties stipulate to a declaration.

38. Foster Care and Adoption
Placement Preferences and Procedural Requirements

39. Placement Preferences
Foster Care
Adoption
1) With a member of the child’s extended family.
1) With a member of the child’s extended family .
2) With a foster home licensed or approved by the tribe.
2) With other members of the Indian child’s tribe.
3) With an Indian foster home licensed or approved by a non- Indian licensing authority.
3) With other Indian families.
4) With an institution approved by an Indian tribe or operated by an Indian organization.

40. Placement Preferences
The tribe may establish a different preference order by resolution.
When no preferred placement is available, active efforts must be made to place the child with a family committed to enabling extended family visitation and cultural and ceremonial events of the child’s tribe.
Must follow preferences unless court determines that there is good cause not to.

41. Note on Adoptions in ICWA Cases
Some tribes oppose the concept of adoption
Can have permanency without termination of parental rights
WIC exception to adoption
Tribal Customary Adoption

42. Small Group Exercise Practice Gathering Relative Information
Pair up with someone you don’t know (or don’t know that well).
Using the ICWA 030 as a guide to gathering specific information (full name, DOB, birthplace, death, etc.), spend the next five minutes interviewing your partner about their maternal and paternal side of the family.
Switch roles, and do the above again.

43. Resources California Indian Legal Services: CDSS ICWA Workgroup:
ICWA Benchguide
CDSS ICWA Workgroup:
(916)
- Click on ICWA Link
CFCC Tribal Projects Unit:
Ann Gilmore & Vida Castaneda
(Search for Tribal)
(directory of services)

44. ICWA 2015 “UPDATES”
Require that state courts and agencies ask whether ICWA applies in every child custody proceeding
Provide clear examples of "active efforts” required to provide services and rehabilitative programs designed to prevent removal and encourage reunification
Require that "active efforts" must begin the moment a case has the potential to lead to removal and should be provided during the investigation of a child's ICWA-eligibility
Limit "good cause" exceptions to placement preferences
Change the process for determining a child's tribe when the child is associated with multiple tribes

45. 2015 “UPDATES” cont’d
Clarify how ICWA applies in the emergency removal and placement of Indian children
Distinguish that the Adoption and Safe Families Act exceptions to reunification efforts do not apply to ICWA proceedings
Clarify the requirements that must be met to apply the protections of ICWA to an unwed father
Conclude that the "existing Indian family" doctrine does not preclude ICWA's application
Clarify that a child is not required to have a certain blood quantum and need not be included on written membership rolls to be ICWA-eligible

46. Thank you!
(and
Just ASK!!)