1. TRIBAL CUSTOMARY ADOPTION
A CULTURALLY APPROPRIATE PERMANENCY OPTION FOR TRIBES AND INDIAN FAMILIES
Presented by:
Nancy L. Currie MA LMFT
Director of Soboba Tribal Family Services
Soboba Band of Luiseño Indians

2. HOW DID WE GET HERE?

3. Historical Perspective
Historically, tribal communities had no need for the type of child welfare systems that exist today. Traditional beliefs, customs, and values about child rearing and protection provided the infrastructure of traditional American Indian/Alaska Native child welfare.
A natural child protection system was created through community values, social pressure, and other cultural practices enforced by extended family.

4. Historical Perspective
With colonization came the destruction of traditional tribal life and the imposition of a western view of the world.
Tribal people were forced onto reservations and their ability to hunt, fish, practice their spiritual beliefs and speak their own language was taken from them.
Since first European contact tribes have struggled to reclaim and continue their culture and manage their affairs.

5. Indian Adoption Project
The Indian Adoption Project began in 1958
nearly 400 children placed away from their families, tribes, and culture.
This, and similar projects, account for approximately 650 children over a 10 year period removed from their tribes and cultures and adopted by non-Indian families.
While well intentioned, many adoptive families:
denied their children’s Indian heritage,
changed the children’s names, and
caused them to grow up in communities where there were few if any others who looked like them, held similar beliefs, spoke the same language, or shared the same culture.

6. Indian Adoption Project
According to David Fashnel’s 1972 longitudinal study Far from the Reservation, Indian people knew that this policy was wrong and “the ultimate indignity that has been inflicted upon them.”
The traditional Native American extended family and tribal social structure made the need for removal of children from their communities and the tribe an unnecessary violation of Native children’s human rights and cultural survival.
In 1978, Congress affirmed the incontrovertible fact that “no resource is more vital to the continued existence and integrity of Indian tribes than their children” and passed the Indian Child Welfare Act (ICWA) to protect Indian families and their children.

7. Looking back is part of looking forward…
“Historically and traditionally, adoption has been practiced in most tribal communities through custom and ceremony. In general, tribes did not practice termination of parental rights. Unfortunately, adoption became a negative thing due to forced assimilation policies; it was used as a tool to destroy Indian families and culture. Due to this historical trauma, many tribes actively abhor adoption as understood by the larger culture’s definition.”
From the website of the National Indian Child Welfare Association (

8. Bringing Our Children Home
Video

9. The Need to Include Customary Adoption in California State Law
Welfare and Institutions Code §366.24

10. A Broad Definition
Customary adoption transfers the custody of a child to the care and protection of adoptive parents without the termination of parental rights

11. California State ICWA Workgroup
1991 the BIA set up meetings between the tribes, the State, and the counties due to need to address ICWA compliance issues with the State and Counties.
The State and Counties were not actively engaging with Tribes to address problems with ICWA compliance.
The group eventually became State ICWA workgroup

12. California State ICWA Workgroup
The ICWA workgroup consists of two separate groups, the Tribal Caucus with representatives from tribes and tribal organizations, and the State/County Caucus
The groups meets bi-monthly to address concerns regarding county compliance with the ICWA
Subcommittees are formed to address specific concerns

13. Why TCA was Necessary
Federal child welfare law and policy express clear preference for termination of parental rights and adoption of children who cannot return to their families
$35 million allocated in September of 2009 by HHS for adoption incentive payments to the counties.
CA state law allows for exceptions to terminating parental rights for Indian children when:
Termination of parental rights would substantially interfere with the child’s connection to his or her tribal community or the child’s tribal membership rights.
The child’s tribe has identified guardianship, long-term foster care with a fit and willing relative, or another planned permanent living arrangement for the child.
Unfortunately, the Termination Exceptions are not an adequate protection for Indian Tribes or families.

14. Permanency Subcommittee
Permanency for Indian Children and Youth subcommittee was established to increase permanency options for children in the foster care system
Customary adoption was addressed in the subcommittee as an alternative to termination of parental rights, which most tribes fought.
CDSS offered to sponsor the bill, but it was decided that the legislation needed to be developed from a tribal perspective.

15. Development of Legislation
Discussion from subcommittee taken to Tribal Caucus
Discussion of possibility of a tribe taking the lead to write legislation
Soboba stepped up to take the lead
Customary adoption to be an option for tribes, not a mandate
California is a Public Law 280 state and most tribal cases remain in State Court
Very few tribal courts

16. Underlying Premises
In formulating and developing an approach to customary adoption in California the following underlying assumption were relied on...
...a belief that children are the sacred responsibility of the tribe.
…one of a tribe’s basic sovereign rights is the right to decide the custody of its children.

17. Underlying Premises
...a belief that culturally based tribal adoption law must provide the legal means to ensure a child’s continuity of relationships and community as well as a sense of belonging over time.
... a tribe has the power and jurisdiction to articulate its own customary practices concerning child custody

18. Development of Legislation
Met with local Assembly representative to request he author the bill
Met with tribal leaders to discuss the legislation
Promise tribal leaders that sovereignty would not be negatively impacted
Sent out requests for letters of support to tribal leaders and organizations
Created FAQ fact sheet to distribute

19. Development of Legislation
Met with CDSS to work on language and address concerns multiple times
CA Child Welfare Directors Association was in support
Testified before State Assembly and Senate committees
1st incarnation of the bill was pulled due to language inserted by legislators, which gutted tribal sovereignty
2nd incarnation was a much stronger bill and was signed into law within 9 months.
Law went into effect July 1, 2010

20. California’s Definition of TCA
Tribal Customary Adoption creates a tribal process utilizing the state court, in the absence of a tribal court, for the recognition of traditional adoption or “making relatives”.
Using underlying legal theories and the traditional practices, a tribe can frame, codify, and support modern interpretations of traditional practices

21. What is Required The Indian child must be a dependent of the State
Only the child’s tribe can request TCA as a permanency option
Every adoptive family must have a home study
Every individual in the home over the age of 18 must be fingerprinted and cleared by the DOJ, FBI, and CACI
The tribe may do the home study or request that a private agency or county/state agency complete the study

22. Elements of a Tribal Customary Adoption Order
Customary Adoption is a tribal process and the TCAO is an order of the Tribe
The TCAO must address the “mandatory” issues:
Modification of the legal relationship of the birth parents/Indian Custodian and the child
Contact between birth parent/Indian Custodian
Responsibilities of the adoptive parents/birth parents/Indian Custodian
Inheritance rights of the child
The child’s legal relationship with the Tribe
Include ceremony etc under Responsibilities

23. What We Have Learned Positives Negatives Many more TCAs than expected
Law has withstood several appeals
TCA is being used more frequently
Decreased the number of contested cases
Each TCAO is specific to the child, family, and tribe
Negatives
Counties trying to force tribes to do TCA
Still need more training for tribes
Failure to follow the law and the guidelines for counties
Still challenges to the law via appeals

24. QUESTIONS

25. Contact Information
Nancy L. Currie, Director
Soboba Tribal Social Services
Phone
Soboba Band of Luiseño Indians
PO Box 487
San Jacinto CA 92581