Indian Child Welfare ActGA Child Welfare Legal Academy,

September 27, 2011Nealie McCormick, Chairman Georgia Council on American Indian ConcernsJudge Lisa M. Mantz, Associate Judge,

Newton County Juvenile Court

• "ICWA" stands for the Indian Child Welfare Act, which is a federal law passed in 1978. ICWA was passed in response to the alarmingly high number of Indian children being removed from their homes by both public and private agencies. The intent of Congress under ICWA was to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families" (25 U.S.C. § 1902). ICWA sets federal requirements that apply to state child custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe.

Why ICWA

Why• A 1976 study by the Association on American

Indian Affairs found that 25 to 35% of all Indian children were being placed in out-of-home care. Eighty-five percent of those children were being placed in non-Indian homes or institutions. *

• *Unger, Steven, ed., The Destruction of American Indian Families, New York: Association on American Indian Affairs, 1977, p.1.

What Is ICWA’s Purpose?• The purpose of ICWA is to do the following:• • Protect Indian children• • Preserve and strengthen Indian families• • Ensure permanency for Indian children• • Protect the continuing existence of Indian

cultures• • Ensure that tribes can exercise their

sovereign authority over child custody proceedings

25 U.S.C. § 1901 et seq.

• It is through relationship with family, elders, tribal community, and culture that the Indian child’s sense of permanence and identity is protected (25 U.S.C. § 1901 et seq.).

Permanency Issues

• ICWA ensures that permanency issues are addressed early and in a way that is consistent with good social work practice and with ICWA and the Adoption and Safe Families Act of 1997 (ASFA).

The presence of tribal welfare workers/tribal attorney

• • Assistance• • Advice• • Positive joint efforts• • Tribal intervention• • Possible transfer of the case• • The sharing of critical, culturally relevant

resources and information• • Maximum input on placement decisions

The Other Side of ICWA 8

Adoption & Safe Families Act (ASFA) 1997

• It applies to Indian children because• ASFA has no express exemption for Indian

children.

To know how to help families now you have to understand their history

• Historical Trauma– Boarding Schools– Loss of language– Distrust– ICWA– Forced Assimilation

• Differences between Native American children and non-Native American children

The Other Side of ICWA 10

SPIRITUALITY

CHILD REARING / EXTENDED FAMILY

VENERATION OF AGE / WISDOM/ TRADITION

RESPECT FOR NATURE

GENEROSITY AND SHARING

COOPERATION/ GROUP HARMONY

AUTONOMY / RESPECT FOR OTHERS

COMPOSURE / PATIENCE

RELATIVITY OF TIME

NON-VERBAL COMMUNICATION

NATIVE AMERICAN CORE VALUES & BELIEFS

Who is an “Indian Child” under ICWA

• Unmarried and• Under Eighteen and• A member of a federally recognized Indian

Tribe OR the child is a biological child of a member of a federally recognized Indian Tribe and the child is eligible for membership in any federally recongized Indian Tribe 25 U.S.C. Section 1903(4)

Practice Tips

The child may be eligible for membership in a different tribe from that of the parent and ICWA still applies.

• • A child who does not meet the definition for “Indian child” under ICWA when the case starts

• may later acquire Indian status. For example, if a parent enrolled in a tribe a child may gain

• Indian child status. In that case, ICWA would apply from that point forward.

Who determines eligibility

• All tribes have the right to determine who is a member of their tribe, and different tribes have different requirements for eligibility. In order to understand these requirements for the particular tribe in question, contact the child’s tribe.

National Indian Child Welfare Association (NICWA)

• NICWA website at www.nicwa.org. Click on

the Resources• tab and then click on Tribal Directory.

Bureau of Indian Affairs Office (BIA)

– Review the Federal Register to determine if the tribe is federally recognized

– If so, determine the geographic location and the BIA regional office of the tribe and the name and contact information for the Indian Child Welfare Designated Agent for the tribe that will be listed in the federal registry

That agent will be able to provide the name and contact information for the local tribal social service program and or the ICWA representative

Documentation

• − Family history chart• − Tribal enrollment number• − Tribal ID card• − Certificate of Degree of Indian Blood• − Other evidence such as a letter from the

tribe or Bureau of Indian Affairs (BIA)• − Documentation from the Indian Health

Service, medical clinic, or school

If unable to determine Indian status

• Contact the tribe(s) and ask if the child is a member.

• Determine if the child is living in an Indian community.• •Diligently inquire about the Indian heritage of any absent parent

and the history of her or his• extended family. Consult with other relatives or extended family

members.• • Contact, as appropriate, Indian social services, health, or

educational organizations.• • Contact the BIA in Washington, D.C., and the appropriate local

BIA office for information about the parents and tribal contact information

What proceedings apply to ICWA?• Foster care placements (25 U.S.C. § 1913[a] [voluntary] and § 1912[e] [involuntary])• Termination of parental rights (25 U.S.C. § 1903[1][ii])• Pre-adoptive placements (25 U.S.C. § 1903[1][iii])• Adoptive placements (includes conversion from foster care to adoptive placement) (25 U.S.C. § 903[1][iv])• Both voluntary and involuntary placements• Divorce proceedings where neither parent will get custody• Any transfers of placement• Juvenile delinquency proceedings where parental rights may be terminated• Status offenses (juvenile delinquency proceedings that involve an offense that would not be acrime if committed by an adult, e.g., drinking, runaway, truancy)

When does ICWA not apply?

• Juvenile delinquency proceedings involving violations of criminal law

• Divorce proceedings where one or both parents are granted custody (25 U.S.C. § 1903)

Emergency Removal

• This information must be determined immediately unless emergency placement or immediate safety issues prevent inquiry:

• Whether the child is in imminent physical danger• The Indian status of the child• The name of the child’s tribe• The jurisdiction over child custody proceedings

Placement Preferences• The placement preferences outlined in Section

1915(b) of ICWA, which are to be applied in foster care placements (including cases involving emergency placements), are:

• 1. A member of the Indian child’s extended family• 2. A foster home licensed, approved, or specified by

the Indian child’s tribe• 3. An Indian foster home licensed or approved by an

authorized non-Indian licensing authority• 4. An institution for children approved by an Indian

tribe or operated by an Indian organization that• has a program suitable to meet the child’s needs

Termination of Emergency Placement

• Emergency placement must end as soon as the danger of imminent physical damage or harm to the child has passed or the appropriate tribe exercises jurisdiction over the case. This is a much more restrictive standard for removal than the regular standard for establishing jurisdiction over a child.

Emergency Placement of an Indian Child

• the child welfare worker must undertake diligent efforts to place the child during emergency care in a setting that complies with the placement preferences in Sections1915(b) or (c) of ICWA. It should be noted that the Indian child’s tribe has the right to establish placement preferences, and the county or state court is required to follow the order,

• as long as, it is the least restrictive setting appropriate to the particular needs of the child.

Appropriate Foster Care Placements

• When appropriate in foster care placements, the preference of the Indian child or parent is to be considered. When a consenting parent requests anonymity, the court must give weight to the parent’s request in applying the placement preferences (25 U.S.C. § 1915[c]).

What are active efforts

• While active efforts is undefined in ICWA, it refers to an effort more intense than the legal term “reasonable efforts.” Active efforts applies to providing remedial and rehabilitative services to the family prior to the removal of an Indian child from his or her parent or Indian custodian, and/or an

• intensive effort to reunify an Indian child with his or her parent or Indian custodian.

Active Efforts

• However, federal guidelines do exist (Federal Register, Vol. 44, No. 228, Monday, November 26, 1979).

Revised Active Efforts Principles and Expectations, Oregon

• Commitment to the requirements and the spirit of the Indian Child Welfare Act;

• • Early contact with and active engagement of the child’s tribe. Active efforts does not require or imply agreement on case issues but does create an expectation that the agency and tribes will work closely together in an atmosphere of mutual respect and honesty to achieve understanding;

Goals• a more vigorous and higher level of effort than

those that typically constitute reasonable efforts.• Casework which goes beyond:• referring for services to arranging services,• and helping families engage in those• services;• managing a case to proactively engaging• in diligent casework activity; and

• meeting the minimum requirements set by• policy to creatively meeting the needs of• children and families.• • Using methods and providing services that

are culturally appropriate Revised Active Efforts Principles and Expectations Publication, Oregon Tribes, Oregon Judicial Department Citizen Review Boards, Oregon Department of Human Services (2010)

Petition should include• − The name, age, tribal affiliation, and last

known address of the Indian child.• − The name and address of the child’s parents,

Indian custodian (if any), and tribe(s).• − If the name and location of the child’s

parents, Indian custodian (if any), or tribe is• unknown, the county child welfare worker

should document the diligent efforts undertaken to ascertain this information.

Petition

A detailed account of the circumstances that led to the conclusion that the child would suffer imminent physical damage.

A written plan of action describing the “active” reunification efforts that have been undertaken and which are planned to restore the child to his or her parents or Indian custodian.

For Indian Children Domiciled on a Reservation

• • For Indian children who are domiciled or reside on the reservation and are temporarily off the reservations, develop a specific plan of action to physically transfer the child to the exclusive jurisdiction of the appropriate Indian tribe in cooperation with the tribal court and child welfare worker

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QUESTION:

Does ICWA apply to Tribes?

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Answer:

No, ICWA does not apply to Tribes.

ICWA does give Tribes rights and opportunities.

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Are Tribes required to intervene in ICWA cases?

QUESTION:

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Answer:No, Tribes are not required to intervene.

Tribes can exercise their rights to intervene but are not required to do so. Intervention does not equate transfer.

It is best practice to…

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Does ICWA apply even if a parent does not want it to apply?

QUESTION:

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Answer:Yes!

There is sometimes confusion between intervention and transfer. A parent can object to the transfer of the case with good cause.

Courts can determine also deviate from placement preferences with good cause.

39

QUESTION:

When does ICWA apply to a child and family?

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Answer:ICWA begins before a child is removed. The worker must make “active efforts” to prevent the child from being removed.

The court will require the agency to demonstrate that “active efforts” have been made and proven unsuccessful.

41

QUESTION:

Who is an expert witness in relation to ICWA?

• “Qualified expert witness” is not defined in ICWA

• House Report 95-1386, 95th Cong., 2d Sess, reprinted in 6 USCCSAN 7530, 7454 (1978) states is “meant to apply to expertise beyond normal social worker qualifications”

Answer

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Answer 44 Federal Register 67,593 (1979)

A member of the child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and child rearing practices or

A lay person having substantial delivery of child and family services to Indians and extensive knowledge of prevailing social and cultural standards and child rearing practices within the child’s tribe or

A professional person having substantial education in his or her area of specialty along with substantial knowledge of prevailing social and cultural standards and child rearing practices within the Indian community

Removing an Indian child in protective custody proceedings:

Tribe is notified of the right to intervene.…Proof by clear and convincing evidence by a qualified

expert that the child willsuffer emotional or physical harm if returned home.

Proof DFCS made active efforts to prevent the placement.Preference to placement with extended family members, approved tribal home,

• Indian foster home or Indian-approved institution.

Approving the voluntary placement of an Indian child

• � Parent signs written consent before judge.• � Consent is signed more than 10 days after

child’s birth.• � Certify you explained terms and consequences

and the parent understood.• � Certify if the explanation was in English or

translated into another language the• parent understood.• � Preference to placement with extended family

members, approved tribal home,• Indian foster home or Indian approved institution.

Terminating parental rights to an Indian child

Tribe notified of right to intervene.• … Proof beyond a reasonable doubt by a

qualified expert that the child will suffer• emotional or physical harm if returned home.• … Proof DFCS made active efforts to reunify

the family.• … Preference to placement with extended

family members, tribal members or other• Indian families.

Accepting relinquishment of an Indian child:• � Parent signs the written consent before a judge.• � Consent is signed more than 10 days after child’s birth.• � Certify you explained terms and consequences and the

parent understood.• � Certify if explanation was in English or translated into

another language the• parent understood.• � Preference to placement with extended family

members, tribal members or other• Indian families.• Consent can be withdrawn, for any reason and at any time,

before the entry of the final order of termination or decree of adoption.

Time Frame for Hearings 1912(a)

• Notice to parent, Indian custodian, or the Indian Child’s Tribe, by registered mail, return receipt requested, of the proceeding and the right to intervene

• If identity or location of parent cannot be determined, notice shall be given to the Secretary, who has 15 days to notify the tribe

• Hearing no sooner than 10 day and tribes have the right to request a 20 day continuance

What standard applies to these cases?

• Section 1921— Any state or federal law that provides a higher standard to protect the rights of the parent or the Indian Custodian of an Indian child than the provisions of ICWA, shall be applied by the State or Federal Court.

• If a Native American Child does not meet the definition of “Indian child” outlined in the act, ICWA would not apply.

• All other federal and state laws, apply including relative placement provisions and the opportunity to be heard in a case review hearing.

What if the child is Indian but not a member of a federally

recognized tribe?

What is a state recognized Indian Tribe?

• A state recognized tribe is a “tribe that maintains a special relationship with a State government and whose lands and rights are usually recognized by the State. They may or may not be federally recognized.”

Georgia’s State RecognizedTribes

• The Georgia Tribe of Eastern Cherokee, The Lower Muscogee Creek Tribe, and The Cherokee of Georgia Tribal Council are state recognized tribes. See O.C.G.A. Section 44-12-300

Nealie McCormick, ChairmanGeorgia Council on American Indian Concerns

c/o Historic Sites Region Office2600 Highway 155 SW, Suite D, Stockbridge, GA 30281

Telephone: 770.389.7265 / 229.294.0011

Georgia Council on American Indian Concerns

• In 2002,The Georgia Council on American Indian Concerns was awarded the added responsibility of advising the State and local governments on issues related to Georgia’s American Indians. The Council is located in Stockbridge Georgia. There are nine members appointed by the Governor. Five members are to be American Indians, one member at large, one physical anthropologist and one scientist. The Council meets every second Wednesday of the month at 1:30 at the Sloppy Floyd Building in Atlanta.

Source of information: http://www.ga.nrcs.usda.gov/about/civilrights/aipage.html

Other State-Recognized TribesAlabama

United Cherokee Ani-Yuw-Wiya Nation

Cherokees of N.E. Alabama Echota Cherokees MaChis Lower Alabama Creek Tribe Mowa Band of Choctaws Star Clan-Muscogee Creek Tribe Cher-o-Creek Intra Tribal Indians Piqua Shawnee Tribe

Connecticut Golden Hill Paugussett Tribe Paucatuck Eastern Pequot Tribe Schaghticoke Bands

Delaware Nanticoke Indians

Louisiana Caddo Indian Tribe Choctaw-Apache of Ebarb Clifton Choctaw Louisiana Choctaw United Houma Nation

Other State-Recognized Tribes Continued

Maine Passamaquoddy Tribe Penobscot Nation

Massachusetts Hassanamisco

Michigan Burt Lake Band of Ottawa and

Chippewa Indians Grand River Band of Ottawa Indians Gun Lake Band of Grand River Ottawa

Indians Swan Creek Black River Confederated

Ojibwa Tribes

Missouri Chickamauga Cherokee Northern Cherokee

New Jersey Rankokus

New York Poospatuck Shinnecock

North Carolina Coharie Haliwa-Saponi Lumbee Merherrin Waccamaw-Siouan

Other State-Recognized Tribes Continued

Virginia• Chickahominy• Eastern Chickahominy• Mattaponi• Monacan• Nansemond• Pamunkey• Rappahannock• Upper Mattaponi

The Georgia Tribe of Eastern Cherokee

• The Georgia Tribe of Eastern Cherokee• P.O. Box 607, Dahlonega Ga 30533• Eligibility Unbroken lineage to Roll• Members 500• Tribal Leader Walker Dan Davis• JB Jones• Contact Information 706-865-3906

Tribal Government

• The Lower Muskogee Creek Tribe has three branches of Government

• Executive Branch---Mekko (Chief)• Legislative Branch Tribal Council• Judicial Branch- Executive Council Head by

the Chief

The Lower Muscogee Creek Tribe

• The Lower Muscogee Creek Tribe• Route 2, Box 370• Whigham, GA 31797• Eligibility: Unbroken lineage to Rolls• Members 2700• Tribal Leaders Chief Vonnie McCormick• Telephone number 229-762-3165

Restoration of Rights

• 1946 Chief Calvin McGhee filed and won lawsuits for the land claims for the Muskogee people. This is known as Docket 21.

• As a result of this lawsuit, the Federal Government recognized that 17.5% of the Creek Nation still remained in the East and they were given Federal roll numbers.

The Cherokee of Georgia Tribal Council

Efforts by the National Council of Family and Juvenile Court Judges

• CONFERENCE OF CHIEF JUSTICES• Resolution 5• To Encourage Greater Collaboration Between

State Courts and Tribal Courts to Protect Native American Children

NCFJCJ

• RESOLUTION IN SUPPORT OF TRIBAL COURTS• AMENDED RESOLUTION IN SUPPORT OF

POLICY RECOMMENDATIONS FOR• TRIBAL ACCESS TO FEDERAL COURT

IMPROVEMENT PROJECT (CIP) FUNDS

Courts Catalyzing Change (CCC)Courts Catalyzing Change (CCC)

Model Courts Model Courts National Agenda National Agenda ImplementationImplementation

CCC National Agenda Key Components

I. Engage national, state, local and tribal stakeholders, community partners, & children and families

II. Transform judicial practice from the bench III. Participate in policy and law advocacy IV. Examine and employ research, data, &

promising practices V. Impact service array and delivery

NCFJCJ Publications

• Right from the Start: The CCC Preliminary Protective Hearing Benchcard, A Tool for Judicial Decision-Making (2010)

• Court Reform and American Indian and Alaskan Native Children: Increasing Protections and Improving Outcomes (2009)

NCJFCJ Publications

• Revised Active Efforts Principles and Expectations Publication, Oregon Tribes, Oregon Judicial Department Citizen Review Boards, Oregon Department of Human Services (2010)

• Technical Assistance Brief Indian Child Welfare Act Checklists for Juvenile and Family Court Judges (2003)

State Court Improvement Project

• The CIP was established as part of legislation passed in 1993 to enable state courts to perform assessments of their foster care and adoption laws and processes, and to draft and employ state plans for system-wide

• reform. The goal was to enable courts to fulfill the oversight role required of them by the Adoption Assistance and Child Welfare Act (P.L. 96-272).

Meaningful collaboration • In following the Pew Commission’s• emphasis on collaboration, the new CIP Program

Instructions require that recipient state courts conduct ongoing and meaningful collaboration with child welfare agencies and tribes.

• This requirement applied to all tribes, not just those recognized by the federal government.

• Emphasis on data collection and training for stakeholders.

State Requirements to Show Compliance with the Five Major

Components of ICWA• Identification of Indian children by the State Welfare

Service Agency• Notification of Indian parents and Tribes of State

proceedings involving Indian children and their right to intervene;

• Placement preferences of Indian children in foster care, pre-adoptive, and adoptive homes;

• Active efforts to prevent the breakup of the Indian family when parties seek to place a child in foster care or for adoption; and

• Tribal right to intervene in State proceedings, or transfer proceedings to the jurisdiction of the Tribe.

Georgia’s Compliance with the Five Major Components of the Indian Child

Welfare Act• In order to determine Georgia’s Compliance

with the Indian Child Welfare Act, one must review Georgia’s compliance with the requirements of the Annual Progress and Service Report (APSR), Child and Family Service Plan (CFSP) and the Chafee Foster Care Independent Program (P.L. 106-169)

"Let us put our minds together and see what life we can make

for our children."

--Sitting Bull

Resources

• Gina Jackson, MSW• Model Court Liaison• Permanency Planning for Children Department• National Council of Juvenile and Family Court Judges• 50 West Liberty, Suite 300• University of Nevada, Reno• Reno, NV 89501• Tel: (775) 784-7040• Fax:(775) 327-2393

RESOURCES

• B.J. Jones, The Indian Child Welfare Act Handbook (American Bar Association 1995). This book summarizes case law nationally, includes the BIA guidelines, and lists the addresses of all federally recognized tribes. To order, call 1-800-285-2221.

• NEVADA ICWA CHECKLIST, ICWA Resource Guide

Resources Tribal Star, Academy for Professional Excellence, San Diego State University School of Social Workhttp

://theacademy.sdsu.edu/TribalSTAR/resources/Resource_List.htm

National Indian Child Welfare Associationhttp://www.nicwa.org/Indian_Child_Welfare_Act/•

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