1. Indian Child Welfare Act
Margaret Burt, JD, Karen Matthews, LMSW, Hon. Anne Simon
Together We Can November 7, 2017

2. Preliminaries Introduce presenters Survey audience:
DCFS? Attorneys? Judges? Foster Parents? Others?
PURPOSE:
What everyone involved in CINC cases needs to know about ICWA and why they need to know it,
UPDATE on the implications of the 2016 FINAL RULE,
and pending court challenges
HAVE YOU HAD ISSUES WE MIGHT HELP WITH?

3. WHY WE NEED TO KNOW ICWA
1. ICWA is important for the preservation of Indian culture.
2. Nationwide, invalidations of adoption proceedings are being actively pursued – consequences of invalidations are tragic for children and families.
§1914: Invalidations lie for any placements violating §§1911, 1912, 1913.
3. ICWA is broader than generally believed.
In effect whenever child removed

4. RECENT BIG CHANGES
“Baby Veronica” SCOTUS 6/25/13 interpreted ICWA in a private adoption case. NEW REGULATIONS! 25 CFR /12/16 NEW GUIDELINES Issued December 2016

5. Indian people have a long and proud history of strong families and tribes

6. BEFORE ICWA
Abusive child welfare practice separated 30% of Indian children from their families.
CHILDREN REMOVED TO BOARDING SCHOOLS
Well into the 20th Century
ADOPTIONS TO NON-INDIAN FAMILIES
Multiplied in 1950s
IMPACT CONTINUES FOR GENERATIONSÍ

7. Boarding School Era 1800 – 1950’s
Schools initially operated by U.S. War Department Children often did not return home for several years. Some report not recognizing their parents they had been gone so long. High mortality rate in schools-some reported 50% Education was seen as “civilizing” children. In truth children were taught to be domestic staff and farmers. Children were forbidden from speaking their native languages, corporal punishment was widely used.
Efforts were targeted at children in earnest. 7

9. Crisis
In a 1969 survey of 16 states, 85% of Indian children in foster care were placed in non-Indian homes
In South Dakota 40% of all adoptions were Indian; Indian population of state was 7%
In North Dakota and the Northwest, studies showed that only 1% of Indian children were removed due to allegations of abuse

10. 1977-78 Congressional Hearings
Witness after witness testified about the removal of Indian children, often without a scintilla of due process
In 1971, 34,538 Indian children lived in institutional facilities
On the Navajo Reservation, 90% of BIA school population in K-12 lived in boarding schools

11. What about the treatment of Louisiana Native Tribes?
Difficult to find specific data or evidence
Look at the result?
Attakapas gone
Of the four federally recognized tribes, only Chitimacha live on native lands

12. Congressional Findings
Congress has plenary power over Indian affairs
Congress has assumed the responsibility for the protection and preservation of Indian tribes and their resources
There is no resource more vital to the continued existence and integrity of Indian tribes than their children
An alarmingly high percentage of Indian families are broken up
States have often failed to recognize the essential tribal relations of Indian people and the cultural and social standard prevailing in Indian communities and families

13. ICWA was enacted by the US Congress in 1978
Congress explicitly found that part of the
trust responsibility of the United States is:
To protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and placement of such children in foster homes . . which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.
Codified at 25 USC Section 1902.

14. ICWA --- §1902 Congressional Declaration of Policy
It is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . .

15. ICWA is a work in Progress
Policy is only the first step
Financial Resources and Enforcement sorely needed
Original law provided tribal grants for welfare services
1980 – Availability of IV-E funding
Tribes still behind in access to services
Applicability of ICWA not universally recognized in state courts
INDIAN CHILDREN IN CARE STILL OVER-REPRESENTED

16. WHAT DOES ICWA DO?
Recognizes the special status of Native Americans and acknowledges that past policies adversely impacted Indian families and tribes
Outlines prerequisites to removal of Indian children, placement preferences, requires qualified expert testimony, and provides for enforcement of the protections

17. Make Sure:
Make sure you are using the NEW regulations and the NEW Guidelines when you are looking up the law
Of course case law not really there yet but New Regs and New Guidelines have lots of commentary built in

18. Why after all the years are there now new regs and new guidelines?
Continuing concern that ICWA is not being adhered to by state agencies and state courts
Continuing concern of variations in state court application of ICWA
A desire to clarify some of the issues and confusion in the federal guidelines from and the ones from 2015
Have the force of regs – and also a “guidance”

19. The Key Questions 1. Is this an ICWA child? 2. Is this an ICWA action?
3. What is the proper jurisdiction?
4. Who needs to be noticed?
5. What are the special evidentiary rules if the matter stays in state court?
6. What are the placement preferences?
What is impacted by the new federal regulations and the new federal guidelines?

20. Question 1 Is this an Indian child under the Indian Child Welfare Act?
§ 1903 (4)

21. WHO IS AN INDIAN CHILD? A POLITICAL QUESTION
Unmarried and
Under 18 years old and
Member in a federally recognized tribe or
Eligible to be a member and the biological child of a member
NOTE: Statute uses term “member” some tribes use other terms like enrolled

22. New Regulations
If child was ICWA before age 18 and the proceedings continue after age 18, ICWA will continue to apply §23.103(d)
Requires that in every emergency, involuntary or voluntary proceedings, the court must inquire if anyone knows or has reason to know that the child may fit the ICWA definition § (a)
IF the court does not know, must be diligent efforts with tribes who may be child’s tribe to find out § (b)(1)

23. New Regulations
If there is reason to think the child may be ICWA, court MUST apply ICWA until there is confirmation that the child is not ICWA § (b)(2)
WOW!

24. OK, so what does that mean
Court must ask all participants at the beginning of the proceeding and record responses on the record, must instruct the parties to inform the court if they receive info
Confirm on the record due diligence of agency or other party to ID and work with tribes to determine membership/eligibility
Treat the child as an ICWA child if reason to know

25. “Reason to Know” § (c)
Anyone in case, any attorney, any tribe or tribal organization or agency says the child is Indian or that they have discovered info that indicates child is Indian
Child gives the court reason to know
Court learns that child or parent’s domicile is on a reservation
Court learns child is or was a ward of a tribal court
Child or parent has a tribal ID cards

26. What makes a child a “member” or eligible to be a member?
What are the tribes membership?
Again – may use different terms , such as enrollment

27. ISSUES Is membership about blood quantum?
How will agency, court learn membership rules?
What about the Multi Ethic Placement Act of and the Inter Ethnic Adoption Provisions Act of 1996?

28. REMEMBER…
There are over 500 other federally recognized tribes in the US, and any child in your state could be a member or eligible to be a member of any of those

29. Bottom Line:
Only the sovereign entity of the tribe can determine if the child is an ICWA child as only they can determine if child is a member or enrollable as a member and a child of a member
Reinforced by the new regs – state court MAY NOT substitute the judgment of a tribe regarding a child being a member, being eligible to be a member or that a parent is a member §

30. Question 2
Is this an action or proceedings that requires the application of the Indian Child Welfare Act?
§ 1903(1)

31. TO WHAT LEGAL PROCEEDINGS DOES IT APPLY?
Child being placed in foster care due to abuse/neglect (or transferred)
Child being placed on status offenses or voluntary where child cannot be returned upon demand

32. MORE APPLICATIONS Child custody with non-parent
Termination proceedings
Pre-adoptive placements
Adoptions—including stepparent, public and private

33. Does NOT apply to: Divorce or Custody Between Two Parents
Juvenile Delinquency, Criminal Acts
Paternity /Support
Domestic Violence
Totally Voluntary/At Will Placements

34. New REGs
Clarifies that ICWA applies to a placement that might be “consented to” by the parent or Indian custodian but that this was done under threat of removal by the court or the agency
Clarifies that “upon demand” means that a mere verbal request returns the child and if there is anything more needed then a verbal request, the placement is NOT voluntary

35. NEW Regs
While a “voluntary” placement into foster care that strictly allows the child to be returned upon verbal request of the parent or custodian is not covered by ICWA – unless there was a threat of removal by the court or the agency – a “voluntary” adoption is always covered by ICWA
Parties in a voluntary must state on the record if the child is an Indian child or reason to think so and state court must ensure that steps are taken to verify tribal status

36. PROTECTS: Indian children
Bio parents of Indian children (even if they are non-Indian)
Indian custodians

37. What do the new regs have to say
In determining that the matter is ICWA, the state court may not consider if the parents participate in tribal activities, may not consider the relationship of the child with the Indian parent, if the parent has ever had custody or the child’s blood quantum
Also says that “continued custody” includes legal or physical custody or both as interpreted by tribal law, custom or state law

38. Question 3
Where is the case heard? Who has jurisdiction? State court? Tribal court? Both?
§ 1911

39. Concepts
Exclusive jurisdiction – only can be handled by a tribal court
Transfer – can be moved from state court to tribal court
Right to Intervene – tribe can be involved in the state court action
§ 1911

40. INDIAN TRIBE EXCLUSIVE JURISDICTION
§ 1911(a) – in a voluntary or involuntary:
1.Indian child who is a ward of a tribal court OR
2. Indian child who resides or domiciled on a tribal reservation where tribe exercises exclusive jurisdiction over child custody proceedings – state court can determine residence or domicile
Mississippi Band of Choctaw v Holyfield
490 US 30 (1989)

41. New Regs on “Domicle” §23.2
For parent – place person regards as home, place person intends to return and live indefinitely even if person may be currently residing elsewhere
For child – the domicle of the child’s parents, if born out of wedlock, domicle of the custodial parent

42. EXCEPTIONS TO EXCLUSIVE JURISDICTION RULE
Older federal law allowed for concurrent jurisdiction with state courts but now some tribes have retroceded

43. New Regs §23.10
If exclusive jurisdiction – state court must notify the tribal court that it will dismiss, must then dismiss and make sure all info is sent to the tribal court such as pleadings and court record

44. STATE COURT JURISDICTION In an voluntary or involuntary placement
Indian child who does not live on the reservation BUT subject to transfer to a tribal court or to intervention by tribe in state court proceeding
So if it is not exclusive jurisdiction to tribal court the two options are:
Transfer or Intervention
§ 1911 (b) and (c)

45. Transfers to Tribal Court
Tribe or parent can ask for the transfer at any time
Either parent (tribal or not) can oppose and stop the transfer
State court must transfer if both tribe and parents want it and can only retain jurisdiction if there is “good cause”
Court can transfer case but child can stay in state care

46. New Regs Transfer request can be made orally or in writing §23.115(a)
Available “at any stage” in each proceedings §23.115(b)
Notify the tribal court of the transfer request and may request timely response to question of tribal court declining §

47. New Regs on Transfer
Entity seeking refusal must state their good cause arguments on the record, other parties must be given opportunity to respond § (a)(b)
Court must state basis if denying transfer on the record § (d)
If transferred – all records go to tribal court §23.119

48. Good Cause to Refuse Transfer? §23.118
Either parent or tribe says they do not want it to transfer will stop transfer
“Advanced Stage” when notice was not provided until advanced stage? NO
Not sufficient connection to tribe? NO
Prior proceeding where no request was made? NO
Transfer might affect placement? NO
Socio economic conditions or negative perceptions of tribes social services or court? NO

49. TRIBAL INTERVENTION IN STATE COURT
Tribe’s right
At any time – including appeals!
Parent, agency, child, court cannot prevent
Even where not going to appear in person
Not specifically listed for adoption proceedings

50. ICWA APPLIES EVEN IF TRIBE DOES NOT APPEAR OR IS UNABLE TO BE INVOLVED
REMEMBER
ICWA APPLIES EVEN IF TRIBE DOES NOT APPEAR OR IS UNABLE TO BE INVOLVED

51. Question 4 The parents or Indian custodian The child’s tribe
Local BIA § (a)
By registered mail with return receipt requested OR NEW under the regulations – certified mail with return receipt requested § (c)
Who gets noticed?
§ 1912 §
In an involuntary foster care placement or involuntary TPR

52. New Regs § (e)
If identity or location of parents, or tribe cannot be ascertained but there is reason to know child is Indian, notice is to be sent to the Regional Director in each BIA Regional office with as much info about the hcild’s ancestors as possible.
BIA Regional office will not determine if child is ICWA but will make reasonable and documented efforts to help locate the child’s tribe, the parents/the Indian custodian

53. Notice Formal notice must be done exactly as law describes
Each “new” proceeding requires notice
Notice goes to all parents and custodians – even if not tribal
Do not need to notice if it is a wholly voluntary placement in foster care
Can ALSO do electronic or personal delivery – but not as a substitute

54. New Regs Party seeking placement sends the notices
Court who knows or has reason to know child is Indian must ensure that party has sent notice by copies filed with the court and the return receipt
Must include list of info from the regs, copies of pleadings, list of rights
If tribe or parent cannot be IDed – notice must be sent to regional BIA office with as much info as possible

55. Question 5
What are the special evidentiary rules that have to be applied if the matter stays in state court?

56. New Clarity What ICWA rules apply in what proceedings?
Emergency- § 23.2 (d)
Voluntary - can get child returned by simply asking, no procedures or conditions, not sue to threat of involuntary
Involuntary § 23.2 (i)

57. Emergency Proceedings ISSUES
§ 1912 (d) and (e) and new reg §
“Active efforts” – New Regulations give examples, stress actually accessing services and using culturally appropriate services
Court must find that emergency placement is needed to prevent imminent physical damage or harm
Must cease placement immediately if no longer necessary to prevent harm - new hearing if there is new

58. Absent extraordinary circumstances, no emergency or temporary removal of an ICWA child should occur for more than 30 days without the proper ICWA removal procedures
30 days and then terminate the emergency proceeding by:
1. “Initiation” of a child custody proceedings- ie a foster care placement, TPR, preadoptive or adoptive placement proceedings or
2. Transfer child to tribal jurisdiction or
3. “Restore” child to parent or Indian custodian

59. Extraordinary Circumstances to go beyond 30 days? §23.113 (e)
1.Restoring child to parent or custodian would subject the child to imminent physical damage or harm AND
2. The state court has been unable to transfer the matter to tribal jurisdiction AND
3. It has not been possible to initiate a child custody proceeding – ie a foster care placement, TPR, preadoptive or adoptive

60. What are “active efforts”?
Efforts by the state to provide remedial services and rehabilitative programs that have not been successful
MORE than “reasonable efforts”
CLEARLY meant to include working with tribe and seeking tribal resources
New Regulations say must be done up to start of proceedings – gives examples – requires that court must document them on the record

61. Emergency Proceedings
Can place for up to 30 days using proper state law procedures but then must apply ICWA procedures – the notice, the higher burden of proof, the QEW
WHEN does an action move from an emergency proceeding to a placement proceeding where all ICWA rules apply?

62. Emergency Proceedings – CAVEAT!!
If you have reason to think it may be an ICWA case:
1. TELL!!
2.Tribe SHOULD be notified even informally
3. Placement priorities should be strongly considered so that you don’t have to move the child unnecessarily
HOW LONG should it be considered an “emergency” placement?

63. Involuntary Placement of the Child
Active Efforts
Qualified expert witness
Likely to result in serious emotional or physical damage if child remains
Clear and convincing burden of proof

64. Involuntary Placement of Child or TPR – New Regs § 23.121
Must show casual connection between conditions in the home and that continued custody by the parent or India custodian would result in serious emotional or physical harm
Poverty or age of custodian without proof of a causal connection is not enough

65. When are ICWA experts (QEWs) used?
Required to testify in court where ICWA child and requested Removal from Home or Termination of Parental Rights
Possibly advise agency, tribe and court where ICWA child on placement decisions
Can ask the tribe, or the local BIA regional office for help in locating a QEW

66. Who is this QEW and what are they supposed to do?
NEW REGS - MAJOR CHANGE - §
Person must be able to testify as to prevailing social and cultural standards of the child’s tribe and testify to continued custody likely to result in serious emotional or physical damage
Can be designated by the child’s tribe
Cannot be the sate social worker assigned to the Indian child’s matter

67. Who has to offer the expert’s testimony. Is it paid for
Who has to offer the expert’s testimony? Is it paid for? Can there be more than one witness? If there is no objection to what is occurring, will there still have to be a QEW testifying? Court should determine if offered person is proper QEW and make that ruling

68. So what kind of things would an expert need to know about?
the tribe’s history
how children are viewed by the tribe
child rearing in the tribe
use of discipline
cultural expectations
tribe’s services
family’s history
protective issues in family
particular incidents
this child’s needs
agency responses
tribe and family view of situation

69. TPR ISSUES ASFA applies – including the exceptions! § 1912 (f)
Qualified expert
Return home would likely result in serious emotional or physical damage
Beyond a reasonable doubt burden of proof
Active efforts – must be documented by the court

70. TPR – New Regs
Must show casual connection between conditions in the home and that continued custody by the parent or India custodian would result in serious emotional or physical harm
Poverty or age or custodian without proof of a causal connection is not enough

71. Voluntary Placement or Surrender
Definition of “voluntary”
Notice not required
HOWEVER, must determine if child is ICWA so must communicate with tribe and if parent wants anonymity, there is still and obligation to find out if child is ICWA
§ (d)

72. VOLUNTARY PLACEMENT OR SURRENDER ISSUES § 23.125
Consent must be in writing and before a family court type judge for voluntary placements or surrenders with record kept
Judge’s certificate, language of parent
More than ten days after the birth for a surrender §23.125(e)
Explain terms, consequences and limits on the record
Can be in closed court if parent wants § (d)

73. ADOPTION ISSUES Revocable before final decree, return to parent
Adoption can be vacated on fraud/duress grounds-, notice, hearing-return to parent §23.136
No adoption can be vacated after two years
Where a parent who is consenting to an adoption wants anonymity, court and tribe must keep info confidential, also court can be closed

74. What if an adoptive parent later surrenders an ICWA child?
There can be a petition to return the child to the birth parents- § 1916
Court must notice birth parent if adoption vacated or set aside or adoptive parent surrenders child, give info to allow parent to participate – this could be waived and waiver can be revoked §

75. Question 6 What are the placement preferences?
Placement preferences apply in all foster care, preadoptive or adoptive placements – including voluntary but if parent wants anonymity in a voluntary, the court can take that into account in looking at the preferences §

76. Concepts Placements in descending order
Don’t move to the next one without documenting reason
Specify why moving to next level in court order
There are good cause arguments
Tribe can change preferences and child and parent’s positions can be considered

77. FOSTER CARE PLACEMENTS
Family setting, sibling attachment, reasonable proximity to their home, family, sibs, special needs
Preferences - § 1925 (b), §23.131
1.extended family – Indian and non Indian family
2.foster home licensed, approved, or specified by tribe
3.Indian foster parents licensed or certified by state/county/ authorized agency -- NEW Reg says at least one of the foster parents must be Indian as per ICWA definition § 23.2(h)
4. institution approved by a tribe or operated by a tribe

78. Foster Care Placements §23.131 (c), (d)
Tribal resolution can establish different preferences and they would then apply provided it is least restrictive and appropriate to the child’s needs
Can consider the preference of the child or the parent

79. ADOPTIVE PLACEMENTS Preferences – §1915 (a) and § 23.129
1. Extended family members – Indian and non Indian family
2. Members of child’s tribe
3. Other Indian families
If tribe has a resolution for different order of preferences, tribal preferences will apply
Court can, where appropriate consider the preference of the parent or child !

80. New Regs – When can you depart from preferences?§
Party who wants to deviate must state why/reason for deviation on the record, in court or in writing to all the parties and that party has burden of proof by clear and convincing evidence that there is good cause to deviate
Court that is going to deviate must state good cause on the record
New Regs – When can you depart from preferences?

81. NEW REGS – Can you deviate?
Tribe has described different preferences by tribal resolution
Request of parents for anonymity in a voluntary procedure, - court give weight
Request of parent after all reviewing options
Request of mature child
Presence of sibling attachment
Extraordinary needs of the child
Nothing available at each level after diligent search, active efforts to locate

82. New Regs – When can you deviate from preferences?
When determining that there is no suitable placement at a level of preference must conform to the prevailing social and cultural standards of the Indian community of the parents
Good cause to deviate must include that a diligent search was conducted to find suitable placement within the preferences but none was located

83. Not Good Cause -
“Ordinary” bonding with placement family that did not comply with ICWA – NO!
Court may not deviate due to socio- economic differences in placement alternatives

84. New Regs §23.133,
State court should allow persons to participate by telephone, video conference
Every party to an emergency proceeding a foster care placement or a TPR has right to examine all documents filed in court

85. Right to counsel for parents and custodians
§ 1912 (b)
Right to counsel for parents and custodians

86. § 1917 and §
Rights of Adult Adoptees to Adoption Records

87. New Regs
Adoptee over 18 can ask court who did adoption to provide information that would show possible tribal affiliations and state court must inform adoptee

88. NEW Regs
State Court must provide a copy of an order regarding a voluntary or an involuntary adoption or adoptive placement of an ICWA child within 30 days to BIA in DC
The BIA will now have central files of state adoptions of Indian children

89. New Regs -§
States must maintain records of all voluntary and involuntary placements in foster care, placements in preadoptive homes, and adoptive placements of ICWA children and must make those records available within 14 days to the child’s tribe or the BIA if they ask for the records.

90. Law and Best Practice Bulletin ‘16
Available from Pelican Center, distributed to Judiciary
Explains issues emphasized in Final Rule 2016

91. Where do we go for guidance?
Louisiana cases from 2nd Circuit
Hampton v. JAL 658 So.2d 331 (1995)
foreshadows Baby Veronica – child not removed from Indian environment
Owens v. Willock 690 So.2d 948 (1997) tribe has exclusive jurisdiction of ward of tribe
With so little jurisprudence, we rely on RULE, Cases from other states, study of the provisions of ICWA

92. RESOURCES THE LAW: 25 U.S.C, 1901-1963 2016 RULE – 25 CFR Part 23 –
- National Indian Child Welfare Association
-Native American Rts. Fund
- Native American and Tribal bullet

93. FAILURE TO FOLLOW ICWA?
Parent, Indian custodian or tribe may petition to invalidate a state court order which was in violation of Sections jurisdiciton,1912 – notice, timing, rules of evidence or 1913 – surrenders/consents – §
NEW – Regs say child can petition to invalidate and new Regs say person who moves to invalidate, need not prove that his/her rights were violated, only that the law was violated

94. Failure to Follow ICWA? Most Important!
Child could lose an important connection
Tribe could lose an important member
Family could lose important and extra help

95. ASK and TELL !
Caseworkers, court and attorneys should make it routine to ask
ICWA findings at every stage clearly documented in court order

96. STEPS Training on new law and a good time to refresh on all concepts
Agency forms and procedures have to be changed
Court procedures have to change