Trainee Participant Manual on ICWA...The PowerPoint presentation and handout are a summary of the...

Trainee Participant Manual on ICWA Authored by: Christine Williams

Produced by: The Central California Training Academy California State University, Fresno

CCTA |CA Common Core: ICWA | March 2010 2

Table of Contents Chapter 1: Introduction .................................................................................................................. 4

Course Description ...................................................................................................................... 4

Core Competencies and Learning Objectives ............................................................................. 4

Materials ..................................................................................................................................... 5

Chapter 2: Historic Background ...................................................................................................... 6

Historical Trauma ........................................................................................................................ 6

California Indian History, Post European Contact ...................................................................... 6

The Mission Era ....................................................................................................................... 6

The Gold Rush ......................................................................................................................... 7

The War of Extermination in California .................................................................................. 8

Indian Lands and the 18 Treaties ............................................................................................ 8

Relocation Program ................................................................................................................ 9

Early Indian Child Welfare in the U.S. ....................................................................................... 10

Indian Boarding Schools ........................................................................................................ 10

The Indian Adoption Project ................................................................................................. 11

Congressional Investigation into Child Welfare Practices Relating to Indian Children and Families ................................................................................................................................. 11

Where are we now? .................................................................................................................. 12

California Tribal Statistics ...................................................................................................... 12

Federally-recognized Tribe v. Non-federally-recognized Tribe ............................................ 12

Disproportionality of Native American Children in Care ...................................................... 13

Chapter 2 Review Questions ..................................................................................................... 13

Chapter 3: ICWA Overview ........................................................................................................... 13

What is ICWA? .......................................................................................................................... 13

What is SB 678? ........................................................................................................................ 14

Definitions ................................................................................................................................. 14

Indian Child ........................................................................................................................... 14

Indian Tribe: Federally-recognized and Non-federally-recognized ...................................... 14

Indian Child’s Tribe ............................................................................................................... 15

Extended Family .................................................................................................................... 15

Indian Custodian ................................................................................................................... 15



Chapter 4: Compliance & Application ........................................................................................... 16

Applicability ............................................................................................................................... 16

Invalidation of Action ................................................................................................................ 16

Inquiry ....................................................................................................................................... 16

Initial Inquiry ......................................................................................................................... 16

Further Inquiry ...................................................................................................................... 17

Parents Information .............................................................................................................. 17

Notice ........................................................................................................................................ 18

The Basic Requirements ........................................................................................................ 18

ICWA Timeline ....................................................................................................................... 20

Determination that the ICWA Applies or Does Not Apply ........................................................ 21

Tribal & BIA Determination ................................................................................................... 21

State Court Determination ................................................................................................... 21

Supplemental Notice ............................................................................................................ 22

Jurisdiction ................................................................................................................................ 22

State Court Jurisdiction – Tribal Intervention ....................................................................... 22

Tribal Jurisdiction – Exclusive and Concurrent ..................................................................... 22

Transfers from State to Tribal Court ..................................................................................... 24

Evidentiary Requirements......................................................................................................... 25

Burdens of Proof ................................................................................................................... 25

Qualified Expert Witnesses ................................................................................................... 25

Active Efforts ............................................................................................................................. 27

Culturally Appropriate Case Planning ................................................................................... 27

Securing the Child’s Tribal Membership ............................................................................... 27

Resources for American Indian Children and Families ......................................................... 28

Placement Preferences ............................................................................................................. 29

Foster Care and Guardianship Placements ........................................................................... 29

Adoptive Placements ............................................................................................................ 29

Tribal Resolution for Order of Placement ............................................................................. 30

Standards for Placing Indian Children ................................................................................... 30

Good Cause to Deviate from the Placement Preferences .................................................... 30


Works Cited ................................................................................................................................... 32


Chapter 1: Introduction

Course Description This training is designed to provide social workers with a basic understanding of the Indian Child Welfare Act or ICWA as it is often abbreviated. This training will provide a basic explanation of the requirements as well as instruction in the practical application of the ICWA in cases involving Indian children. This training will also provide a historical background of what Indian people experienced in California prior to Congress enacting the ICWA. Upon completing this training the trainee will have the knowledge and tools to better serve the Indian children and families in the juvenile system in their county.

Core Competencies and Learning Objectives This training meets the California Common Core Curricula for Child Welfare Workers for the Indian Child Welfare Act (ICWA). The Core competencies and learning objectives for this training are as follows: CORE COMPETENCIES The trainee will understand the historical, philosophical, and legal basis for the Indian Child Welfare Act (ICWA). The trainee will understand the origins of historic distrust/trauma and their implications for helping relationships. The trainee will understand issues of fairness, equity, and the disparities experienced by Indian /Native American children and their respective families within the child welfare system. The trainee will understand the fundamental concepts of culture; understand how one’s own culture affects one’s perceptions, behaviors, values; and know how cultural differences and unconscious bias can affect service delivery. LEARNING OBJECTIVES Knowledge: K1. The trainee will be able to recognize the historic relationship between Indian Children

and Child Welfare policy leading to ICWA.


K2. The trainee will be able to identify the legal basis of ICWA as it relates to child welfare

practice. K3. The trainee will be able to recognize the potential impact of not identifying

Indian/Native American children during the initial stages of the child welfare process. K4. The trainee will be able to identify the basic provisions of ICWA. K5. The trainee will be able to explain how ICWA considers the needs and rights of tribes,

families, and children. K6. The trainee will be able to describe the potential negative consequences of

noncompliance with ICWA. K7. The trainee will be able to explain how tribes and/or tribal representative(s) can be used

as a resource for decision-making throughout the life of a case when serving Indian/Native American children.

Values: V1. The trainee will understand the critical nature of indentifying Indian/Native American

Children during the initial stages of the child welfare process. V2. The trainee will value tribes and tribal representative as resources for decision-making

throughout the life of a case when serving Indian/native American children.

Materials In addition to this Trainee Participant Manual on ICWA, you should also receive, as part of your training materials, an agenda for the training, a PowerPoint handout to accompany the PowerPoint presentation, the Judicial Council ICWA forms, and any additional resources that may become available to your trainer at the time of the actual training. The PowerPoint presentation and handout are a summary of the information presented here, within the Trainee Participant Manual on ICWA. There is more information contained within the Trainee Participant Manual on ICWA than can be covered in 3 hours which is the amount of time allotted for the training presentation on ICWA. Thus, we intend this Trainee Participant Manual to be a document that you review in addition to completing the 3 hour ICWA training presentation. We hope that once you have reviewed the Trainee Participant Manual in its entirety you will continue to utilize the information contained herein as a reference in your casework when it involves Indian children and families.


Chapter 2: Historic Background

Historical Trauma “Historical Trauma is cumulative emotional and psychological wounding, over the lifespan and across generations, emanating from massive group trauma experiences.”1 The concept of Historical Trauma was developed by Maria Yellow Horse Brave Heart who holds a PhD in Clinical Social Work. Historical Trauma responds specifically to the Native American community as it describes “massive cumulative trauma across generations.”2 Similar theories such as post-traumatic stress disorder (PTSD) and Intergenerational trauma are limited in their application to the Native American Community in that they do not account for the group trauma experiences suffered by the Native American Community. In order to serve the Native American Community in a culturally responsive way, it is critical to consider the history of the trauma’s suffered by the Native American Community and the “continuing transfer of trauma across generations.”3 Thus the rest of this chapter will discuss some of the history experienced by Native American people nationwide and specifically in the state of California.

California Indian History, Post European Contact Historians and anthropologists have written entire books on the history of Native Americans in California. Still most of the knowledge of these written works is not taught as part of the primary public education. In fact it is possible to earn a doctorate degree and still have never heard the “Indian side” of American History unless one specifically takes a class on the subject. The purpose of this section is not to recount the entire history of Native Americans in California but rather to highlight some of the massive group trauma experienced by the California Native American community that everyone should know about, and yet has seldom been taught in primary or even advanced education.

The Mission Era “Cultural genocide can be defined as the effective destruction of a people by systematically or systemically (intentionally or unintentionally in order to achieve other goals) destroying, erasing or undermining the integrity of the culture and system of values that defines a people and gives them life.”4

California’s Mission Era ran from 1769-1836.5 In 1769 Catholic missionaries along with Spanish military authorities established the first of 21 coastal missions in the San Diego area.6 The goal of the Spanish government was to thwart Russian colonial expansion from the North.7 The Spanish mission system in California is often credited with bringing the gifts of literacy and Christianity to the Indian people in California. In their quest to convert Indians to Christianity,


missionaries failed to acknowledge that Indian people of California had their own culture, governments, religions and spiritual beliefs and practices, which they still maintain today.8 Most “conversions” recorded by missionaries were merely baptisms that did not amount to the “convert” giving up his own beliefs and practices, at least not completely.9 Indian “recruits” were often captured and forcibly taken to the missions for conversion.10 If a recruited Indian resisted baptism it was common to imprison or beat the “recruit” until they were willing to convert.11 Missions brought disease, starvation, warfare and coerced assimilation of Indian people.12 At the time of the establishment of the first Mission there were approximately 300,000 Native Americans living in California.13 By 1821 only 200,000 remained.14 When numbers of Indians declined in the missions due to disease or escape soldiers would have to venture further and further away from the missions to “recruit” new groups of Indians.15

The Gold Rush It is hard to grow up in California and not know at least a little about the gold rush. California is very proud of the legacy of the gold rush era. The state nickname is “The Golden State”, the state motto is “Eureka” Greek for “I found it” referring to the discovery of gold in 1848. Ironically, the state animal, the grizzly bear, proudly displayed on the state flag, is extinct, “less than 75 years after the discovery of gold, every grizzly bear in California had been tracked down and killed.”16 Native Americans in California nearly suffered a similar fate.

Miner and Indian relations were hostile and violent during the gold rush era. There are well documented accounts of the enslavement and killing of Indian people by the white settlers, most of whom came to California in search of gold.17 There are newspaper reports, as well as military records of military troops or miners massacring entire villages of Indian men, women and children.18

“The handiwork of these well armed death squads combined with the widespread random killing of Indians by individual miners resulted in the death of 100,000 Indians in the first two years of the gold rush. A staggering loss of two thirds of the population. Nothing in American Indian history is even remotely comparable to this massive orgy of theft and mass murder. Stunned survivors now perhaps numbering fewer than 70,000 teetered near the brink of total annihilation.”19

The Indian child slave trade began shortly after the discovery of gold in 1850 continuing for over a decade.20 “Between 1852 and 1867, three to four thousand children were taken. Added to these figures must be hundreds of Indian women who were seized for concubinage and adult men apprehended for field labor.”21


The rush for gold and land in California left the Indian people of California struggling for their very survival.

The War of Extermination in California In the first annual Governor’s address to the legislature in 1851, Governor Peter H. Burnett stated, “that a war of extermination will continue to be waged between the races, until the Indian race becomes extinct, must be expected.”22 This statement by Governor Burnett was made during what is known in Indian history as the Treaty Era. The federal government was adopting a policy of assimilation of the Indians versus extermination and was negotiating treaties with tribes across the nation. California’s government, through statements like the one above and several acts of the legislature, however, made a clear, public statement that they were not following the federal example, that extermination was the favored Indian policy in California.

“The California Legislature created the laws that controlled California Indians’ land, lives and livelihoods, while enforcement and implementation occurred at the county and local township levels. Some examples include:

• County-level Courts of Sessions and local township Justices of the Peace determined which Indians and Indian children were “apprenticed” or indentured pursuant to the 1850 Act for the Government and Protection of Indians.

• Under the same act, Justices of the Peace, mayors or recorders of incorporated towns or cities, decided the status and punishment of “vagrant” Indians.

• Under the California Constitution and state militia laws, California governors ordered

local sheriffs to organize the men to conduct the “Expeditions against the Indians.””23

Indian Lands and the 18 Treaties At the same time the Government of California was publically adopting a policy of genocide of Native Americans, the federal government was attempting to negotiate treaties with tribes in California. Between 1851-1852 agents from the Bureau of Indian Affairs (BIA) had negotiated 18 treaties with over 100 tribes or groups of Indians in California reserving over 8 million acres of land for the tribes.24 However, the tribes did not know that before these treaties would be honored by the federal government, they had to be ratified by the U.S. Senate.25 California’s government expressed their opposition to the treaties which were perceived by California’s non-Indian population to be against mining and agricultural interests.26 In closed executive session and under an injunction of secrecy, congress refused to ratify the 18 treaties.27 Tribes were left homeless with nowhere safe to go.28


Decades later Congress passed the California Jurisdictional Act of 1928 which allowed the Indians to use the California Attorney General’s office to sue the federal government over the any claims California Indians may have against the government.29 After years of legal battles, in 1944, the California Indians won a judgment of only about $5 million, plus about $28,000 was deducted to cover California’s court expenses.30 Natives of California, feeling this judgment was wildly unfair, filed claims against the federal government, under the Indian Land Claims Commission Act of 1946, over the theft of their land beginning in 1850.31 After years of settlement negotiations, in 1968, California’s Indians, as counted by the federal government census roll prepared for the settlement, known as the California Indian Judgment Roll32, received $0.47 per acre of land, based on what the land may have been worth in 1850.33 The resentment over this settlement still lingers in the Native American community today.

Relocation Program In furtherance of the federal policy of assimilation the BIA instituted the relocation program beginning in the late 1940’s.34 The program was designed to assimilate Native American individuals living on reservations across the nation to into mainstream America.35 Native American individuals left their reservation communities under the government promise of a better life.36 Native American people were moved from reservations outside of California to major urban centers in the country at the time.37 Two of the largest relocation centers were California’s Bay Area and Los Angeles.38 With this latest attempt at government assimilation of Native Americans, California’s urban Indian population was born. The U.S. Census statistics for Indians residing in Los Angeles County are: 1950 = 1,671 Indians; 1960 = 8,109 Indians; and 1970 = 24,509 Indians.39 Native Americans were provided training in the lowest status jobs with the potential for earning very low wages, moving them from poverty on the reservation to poverty in urban neighborhoods.40 Additionally, there were no services or programs designed to guide Native American people through, what must have been, the large scale culture shock of moving from a reservation community to an urban community.41 By the 1960’s the program had all but failed and by the 1970’s it officially ended. However, this urban Indian population remained, and remains today.

1950 = 1,671

1960 = 8,109

1970 = 24,509

Figure 1: US Census statistics for Indians in Los Angeles County


Early Indian Child Welfare in the U.S.

Indian Boarding Schools As yet another attempt at assimilating the Indian population into the mainstream population, the federal government, beginning in 1879, funded and authorized the Indian Boarding School System. The schools were run by Christian Missionaries, despite the United State’s policy of separation of church and state. In advocating for the use of Christian teaching and influences in boarding schools by use of Christian educators and missionaries, Indian Commissioner Price had this to say in 1882:

“If we expect to stop sun dances, snake worship, and other debasing forms of superstition and idolatry among Indians, we must teach them some better way…the establishment of industrial schools, where the thousands of Indian children now roaming wild shall be taught to speak the English language and earn their own living, will accomplish what is so much desired, to wit, the conversion of the wild roving Indian into an industrious, peaceable, and law abiding citizen…”42

The motto of the boarding schools was “kill the Indian, save the man.”43 That was what the schools attempted to do. Children who attended the boarding schools ranged in age from 5 years old to 21.44 Children were taken from their homes on reservations by bribery, persuasion, fraud, threats and force.45 Children who attended were banned from speaking their language, practicing their religion, and wearing their traditional clothes and hairstyles.46 They were given a new, English name in place of the name they had been given by their families.47 The end result for many students was loss of culture, loss of intergenerational family connection, internalized low self worth, physical and sexual abuse and for some, death.48 The trauma experienced by Indian families as a result of the boarding schools is still felt in the Native American community. In 1969 the Senate ordered a special report on Indian education, the following were some of the statistics in the report49:

Indian Students National Average

Children who attend college 18% (of those in Federal Indian Schools) 50% Percent of those enrolled in college who graduate

3% 32%

Amount spent on text books and supplies per year per child

$18.00 (by BIA) $40.00


These statistics reinforce that the goal of the boarding schools was to assimilate rather than educate Indian children. The basic finding of the report was: “that our Nation’s policies and programs for educating American Indians are a national tragedy.”50

The Indian Adoption Project The Indian Adoption project was funded by the BIA and administered by the Child Welfare League of American from 1958 through 1967.51 The purpose of the project was to remove Indian children from poverty stricken Native American communities and place these children for adoption into non-Indian homes.52 Although the child welfare policy of the day was, “matching” or pairing adoptive homes and children placed for adoption by race/ethnicity, an exception was made for Native American children in order to provide the possibility for a better life for these children by placing in non-Indian homes.53 “This was the first national effort to place an entire population transracially and transculturally.”54 While this project may have been well intentioned, the end result was not a positive one for Native American communities and families. Hundreds of children were “adopted out” of the Native American community directly through this project.55 Countless more Native American children were adopted out via state child welfare agencies and private adoption agencies following the model of the Indian Adoption Project. In 2001 the Executive Director of the Child Welfare League of America affirmed the agency’s support of the ICWA by stating:

“No matter how well intentioned and how squarely in the mainstream this was at the time, it was wrong; it was hurtful; and it reflected a kind of bias that surfaces feelings of shame.”56

Congressional Investigation into Child Welfare Practices Relating to Indian Children and Families Historically Indian children, as recently as the 1950’s, 1960’s and 1970’s, were being removed from their tribal homes and placed in non-Indian foster and adoptive homes and institutions at rates disproportionally higher than federal and state averages.57 In the majority of the cases where Indian children were removed from their homes, approximately 99%, the basis for the removal were vague standards such as deprivation and neglect, only in about 1% of the cases were Indian children removed for alleged “abuse”.58 Social workers and adoption agencies perceptions of what are appropriate child rearing practices did not align with tribal social and cultural norms. Thus, Indian children were being removed from their families and placed into non-Indian homes at disproportionally high rates based on cultural bias against tribal childrearing practices. 59 In the 1970’s, at the urging of the Native American community, Congress formed a task force to investigate these practices. In 1976, the American Indian Child Welfare Review Commission issued a report which included the following statistics for California: Indian Children Placed for Adoption60:

• 1 out of every 26.3 Indian children had been adopted.


• The adoption rate for non-Indian children was 1 out of every 219.8 • Thus, there were 8.4 times (840 %) as many Indian children in adoptive homes as there

were non-Indian children. • 92.5 % of these Indian children were adopted by non-Indian families.

Indian Children Placed in Foster Care61:

• 1 out of every 12 Indian children was in foster care. • The foster care rate for non-Indians was 1 out of every 366.6. • Thus, there were 2.7 times (270 %) as many Indian children in foster care as there were

non-Indian children. • No data was available on how many Indian children are placed in non-Indian homes or

institutions The same disproportionality was seen in other states that were part of the report.62 Nationally, approximately 25 – 35% of all Indian children were placed in foster homes, adoptive homes or institutions.63 The federal Committee on Interior and Insular Affairs, stated in their report that called for the enactment of the ICWA:

“It is clear then that the Indian child welfare crisis is of massive proportions and that Indian families face vastly greater risks of involuntary separation than are typical of our society as a whole.”64

Where are we now?

California Tribal Statistics California is home to 107 federally-recognized Tribes.65 More Native Americans live in California than in any other state.66 Furthermore, the majority of the Native Americans living in California are from tribes located outside of California.67 If you read the history of the relocation project above, it is probably clear why the Native Community in California is so large and so diverse.

Federally-recognized Tribe v. Non-federally-recognized Tribe So what is a federally-recognized tribe and why aren’t all tribes federally-recognized? Tribes that are federally-recognized are acknowledged by the federal government as being a distinct quasi-sovereign political entity. There are over 500 tribes nationwide that are federally-recognized.68 A tribe can be recognized by the federal government by treaty, by executive order, via court order or settlement, or through a petition process. The petition process to become federally-recognized was devised by the federal government, not by the tribes. It is a tedious process, and many tribes apply several times before they are granted federal


recognition, if they are ever successful. As of September 2008 the BIA had received 74 petitions from tribes seeking recognition in California.69 California does not have a formal “state recognition” process although non-recognized tribes are afforded rights and courtesies under certain California laws. The Central California Counties are home to 9 federally-recognized tribes and approximately 7 tribes that are non-federally-recognized.70

Disproportionality of Native American Children in Care Today, in California, Native American children are still vastly over-represented in the California child welfare system compared to other populations. Native American children are the second

highest over-represented population in the system.71 In fact, African American children and Native American Children are the only two populations that are over-represented in the child welfare system in California. According to the CWS/CMS data for 2008, while .65% of the total population of children in California is “in care” in the child welfare system, 2.11% of the Native American children in California is in care.

Native American children comprise 1.5% of all the children in care in California and

only comprise .47% of California’s total population of children. Additionally, many of the out of home placements of Indian children are in non-relative, non-Indian homes.72

Chapter 2 Review Questions 1. What is the difference between PTSD and Historical Trauma? 2. Name 2 acts by the federal or state government during the early 1850’s that negatively

impacted the California Indian population. 3. Describe the “Indian child welfare crisis” of the 1950’s – 1970’s. 4. What is a federally recognized tribe?

Chapter 3: ICWA Overview

What is ICWA?

0.65

2.912.11

0.61 0.520.17

Total Black Indian Hispanic White Asian

% in

Car

e

Disparity by EthnicityCalifornia

Figure 2: 2008 CWS/CMS Data


The Indian Child Welfare Act, often abbreviated as ICWA, is a federal law that was enacted by Congress in 1978.73 This law establishes the minimum federal standards that must be applied in state child custody proceeding involving Indian children. The ICWA acknowledges and implements the child’s tribe’s right to intervene and participate in state child custody proceedings. The ICWA acts as the federal government’s method of ensuring that state governments honor the political standing that tribes have in the United States.

What is SB 678? Senate Bill No. 678 (“SB 678”) is a piece of California legislation that was signed into law in 2006. This law amended several sections of the California Welfare and Institutions Code (“WIC”), the California Probate Code (“Probate Code”) and the California Family Code (“Family Code”). SB 678 codified what is required in cases involving Indian children in California. Much of what was contained in SB 678 is a restatement of the requirements of the ICWA. Some of the provisions of SB 678 were included to clarify how to specifically implement the ICWA in California. A few provisions of SB 678 are not restatements or clarifications of the ICWA but were intended to respond specifically to Indian child welfare practice in California. The ICWA provides that states may pass legislation that provides a higher standard of protection to Indian children and families.74

Definitions [25 USC § 1903; WIC § 224.1]

Indian Child [25 USC § 1903(4); WIC § 224.1(a)] The term Indian is defined in many different ways depending on the application. For the purpose of the ICWA, an Indian child means any unmarried person who is under the age eighteen and is either:

a) a member of an Indian tribe or b) is eligible for membership in an Indian tribe and is the biological child of a member of an

Indian tribe. In other words if the child is not a member, but is eligible for membership in a tribe at least one of the child’s biological parents must be a member of the tribe for the child to be considered an Indian child for the purposes of the ICWA.

Indian Tribe: Federally-recognized and Non-federally-recognized [25 USC § 1903(8); WIC § 224.1(a); 306.6]


For the purpose of the ICWA, an Indian Tribe is any federally-recognized tribe, including any Alaska Native village. Tribes of Canada, Mexico or any other foreign country are not considered tribes for the purposes of the ICWA. WIC §306.6 provides for the court to permit non-federally recognized tribes to participate in the proceedings upon the request of the tribe. This is due to the large number of non-federally-recognized tribes located in California.

Indian Child’s Tribe [25 USC § 1903(5); WIC § 224.1(a)&(d)] The Indian child’s tribe is the tribe of which the child is a member of or eligible for membership in. If the child is eligible for membership in more than one tribe, the child’s tribe will be the tribe with which the child has more significant contacts as determined by the court according to WIC §224.1(d).

Extended Family [25 USC § 1903(2); WIC § 224.1(b)] The child’s tribe’s laws and customs define who is considered the child’s extended family. Some tribes define extended family very broadly for example they make no distinction between first, second or eighth cousin, if you are cousins by any degree you are cousins, period. Other tribes have very specific rules that consider relationships beyond kinship, for example two children who are raised together in the same house may be considered to be siblings even if they have different parents. You would have to consult each child’s tribe to know who they consider extended family. In the absence of any tribal customs applying to extended family the following definition applies: a person 18 or older who is the child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or step-parent.

Indian Custodian [25 USC § 1903(6); WIC § 224.1(a)] An Indian custodian is any Indian person who has legal custody under tribal law or custom or under state law over an Indian child, or who has been given physical custody by the child’s parent. This grant of legal or physical custody does not have to be in writing. If an Indian child is removed while under the physical or legal care of an Indian custodian that Indian custodian will have the same rights as the parents do in the case. It is almost as if there is a third parent involved in the proceedings.


Chapter 3 Review Questions 1. When was the ICWA passed? 2. What 3 California Codes were amended by SB 678? 3. What is an Indian custodian?

Chapter 4: Compliance & Application All forms referenced in this chapter are included in your training materials.

Applicability [25 USC § 1901-1923, 1903(i); Cal. Rules of Court, rule 5.480] The ICWA applies to any state court proceeding involving an Indian child that may result in a voluntary or involuntary foster care placement; guardianship placement; custody placement under Family Code section 3041; declaration freeing the child form the custody and control of one or both of the parents; termination of parental rights; or voluntary or involuntary adoptive placement. This includes all proceedings under WIC §300 et. seq. and WIC §600 et. seq. when the child is in foster care or at risk of entering foster care.

Invalidation of Action [25 USC § 1914; WIC § 224(e); Cal. Rules of Court, rule 5.486] If the ICWA applies, the Indian child, parent, Indian custodian or the tribe may petition the court to invalidate the proceeding for not complying with ICWA. This is separate from an appeal of the decision. If the petition to invalidate the proceeding is successful the proceeding will have to be repeated in order to comply with ICWA.

Inquiry [BIA Guidelines, 44 Fed.Reg. 67,584, § B.5(a); WIC § 224.3; Cal. Rules of Court, rule 5.481]

Initial Inquiry [BIA Guidelines, 44 Fed.Reg. 67,584, § B.5(a); WIC § 224.3(a); Cal. Rules of Court, rule 5.481(a)(1)] In all child custody proceedings, the court and the social worker1, must ask the child, the parents or legal guardians, and the Indian custodian as soon as possible whether the child is or

1 The law defines several duties that “the petitioner” has in cases involving Indian children. Petitioner includes, the social worker, the probation officer, a licensed adoption agency or adoption service provider, the petitioning party in a probate guardianship or an investigator. For this training manual social worker means petitioner.


may be an Indian child and must record the information on Judicial Council form ICWA-010(A) – Indian Child Inquiry Attachment. The Inquiry Attachment form must be filed with every 300 and 600 petition. If the social worker is filing a subsequent petition and there is no new information then the Inquiry Attachment form is not required. You cannot tell if someone is an Indian child by looking at them, or by looking at one or both of their parents, you must ask. A child who has blended ancestry may physically present as another ethnicity. You cannot assume that because a child looks African American, for example, that they are not an Indian child. Similarly you cannot tell by the family’s last name if the child is Indian or not. Too many times families with Spanish last names are not asked about their Indian ancestry, because the assumption is that they are not Native American.

Further Inquiry [WIC § 224.3(c); Cal. Rules of Court, rule 5.481(a)(4)] The duty of inquiry is continuing and you must make further inquiry if you know or have reason to know that the child is an Indian child. As soon as practical you must interview the parents, Indian custodian, all available extended family members, any possible tribes and the BIA to gather information about the possible Indian status of the child and the following information if available:

a) The name, birthdate, and birthplace of the Indian child b) The name of the Indian tribe in which the child is a member or may be eligible for

membership. c) All names known of the Indian child’s biological parents, grandparents, and great-

grandparents, or Indian custodians, including maiden, married, and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers and any other identifying information, if known.

If you discover any new information at any point in the case, you must record this information on an additional Inquiry Attachment form and file it with a cover sheet with the court. PRACTICE TIP: It is helpful to use the Judicial Council form ICWA-030 – Notice of Child Custody Proceeding of an Indian Child (discussed below in Notice Section) as an interview tool when interviewing the child’s relatives.

Parents Information [WIC § 224.3; Cal. Rules of Court, rule 5.481(a)(2)-(3)] At the first appearance in court by a parent, Indian custodian, or guardian, the court must order them to complete Judicial Council form ICWA-020 Parental Notification of Indian Status. If the


parent, Indian custodian or guardian does not appear at the first hearing the court must order the social worker to use reasonable diligence to find and inform the parent, Indian custodian or guardian that the court has ordered them to complete this form.

Notice [25 USC § 1912(a); WIC § 224.2; Cal. Rules of Court, rule 5.481(b)] The requirements for notice in a case involving an Indian child are very specific. If any of these requirements are not met, exactly, the case is subject possible invalidation or to being overturned on appeal. Inquiry and notice are the threshold requirements of ICWA. If either of these provisions is not met the tribe has no chance of participating in the case. Further if the tribe does not receive proper notice it is unlikely any of the other provisions of the ICWA will be met in the case.

The Basic Requirements [25 USC § 1912(a); WIC § 224.2(a); Cal. Rules of Court, rule 5.481(b)(1)]

After inquiry and further inquiry if there is reason to know that the child is an Indian child, notice must be sent to the parent or legal guardian and Indian Custodian of the child, and the child’s tribe. You must send notice in compliance with WIC §224.2. Notice must be sent using Judicial Council form ICWA-030 – Notice of Child Custody Proceeding for an Indian Child. You must

send notice by registered or certified mail with return receipt requested. Additional notice by first-class mail is recommended, but not required.

Reason to know [BIA Guidelines, § B.1(c); WIC § 224.3(b); Cal. Rules of Court, rule 5.481(a)(5)] The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following:

1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child's extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe.

2) The residence or domicile of the child, the child's parents, or Indian custodian is in a predominantly Indian community.

3) The child or the child's family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service.


Who to Notice [25 CFR § 23.11; WIC § 224.2] You must send notice to the tribal chairperson, unless the tribe has designated another agent for service. The U.S. Department of the Interior (“DOI”) publishes a list of federally recognized Indian tribes agents for service of notice. This list can be found on the DOI’s website at: www.doi.gov/bia. You must send notice to the address listed for the tribe’s agent of service of notice in the federal register. You must send Notice to all tribes of which the child may be a member or eligible for membership, until the court makes a determination as to which tribe is the child's tribe, after which notice need only be sent to the tribe determined to be the Indian child's tribe. You must also send notice to the Sacramento Area Director of the Bureau of Indian Affairs. If the identity or location of the parents, Indian custodians, or the minor's tribe is known, you must also send a copy of the notice directly to the Secretary of the Interior.

Information Required to be Included [25 CFR § 23.11(d); BIA Guidelines, § B.5(b); WIC § 224.2(a);] Notice shall include all of the following information if known:

1) The name, birthdate, and birthplace of the Indian child. 2) The name of the Indian tribe in which the child is a member or may be eligible for

membership. 3) All names known of the Indian child's biological parents, grandparents, and great-

grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information.

4) A copy of the petition by which the proceeding was initiated. 5) A copy of the child's birth certificate, if available. 6) The location, mailing address, and telephone number of the court and all parties

notified pursuant to this section. 7) A statement of the following:

a. The absolute right of the child's parents, Indian custodians, and tribe to intervene in the proceeding.

b. The right of the child's parents, Indian custodians, and tribe to petition the court to transfer the proceeding to the tribal court of the Indian child's tribe, absent objection by either parent and subject to declination by the tribal court.

c. The right of the child's parents, Indian custodians, and tribe to, upon request, be granted up to an additional 20 days from the receipt of the notice to prepare for the proceeding.

d. The potential legal consequences of the proceedings on the future custodial and parental rights of the child's parents or Indian custodians.

http://www.doi.gov/bia


e. That if the parents or Indian custodians are unable to afford counsel, counsel will be appointed to represent the parents or Indian custodians pursuant to Section 1912 of the Indian Child Welfare Act.

f. That the information contained in the notice, petition, pleading, and other court documents is confidential, so any person or entity notified shall maintain the confidentiality of the information contained in the notice concerning the particular proceeding and not reveal it to anyone who does not need the information in order to exercise the tribe's rights under the Indian Child Welfare Act.

Other Notice Provisions [WIC § 224.2(b)-(f); Cal. Rules of Court, rule 5.482(b)&(d)] After a tribe acknowledges that the child is a member or eligible for membership in that tribe, or after a tribe intervenes in a proceeding, the information in c), d), e) and g) does not need to be included in notice. Proof of the notice, including copies of notices sent and all return receipts and responses received, shall be filed with the court in advance of the hearing. In the case of an appeal, these documents must be in the court file to show that proper notice was sent in compliance with the law. Any person that knowingly and willfully falsifies or conceals a material fact concerning whether the child is an Indian child, or counsels a party to do so is subject to sanctions. The inclusion of contact information of any person shall not be required if that person is at risk of harm as a result of domestic violence, child abuse, sexual abuse, or stalking.

ICWA Timeline [25 USC § 1912(a); WIC § 224.2(d); Cal. Rules of Court, rule 5.481(a)(2)-(3)] No proceeding shall be held until at least 10 days after receipt of notice by the parent, Indian custodian, the tribe, or the Bureau of Indian Affairs, except for the detention hearing, provided that notice of the detention hearing shall be given as soon as possible after the filing of the petition initiating the proceeding and proof of the notice is filed with the court within 10 days after the filing of the petition. With the exception of the detention hearing, the parent, Indian custodian, or the tribe shall, upon request, be granted up to 20 additional days to prepare for that proceeding. Nothing herein shall be construed as limiting the rights of the parent, Indian custodian, or tribe to more than 10 days notice when a lengthier notice period is required by statute.


In every case where there was a duty to notice tribes who may have a child involved, you must proceed as if the child is an Indian child until you have a determination that ICWA does not apply.

Determination that the ICWA Applies or Does Not Apply [BIA Guidelines, § B.1; WIC § 224.3; Cal. Rules of Court, rule 5.482(d)]

Tribal & BIA Determination [BIA Guidelines, § B.1(i)&(ii); WIC § 224.3(e)(1)&(2)] A determination by an Indian tribe that a child is or is not a member of or eligible for membership in that tribe, via a response to the notice or via testimony, is conclusive. Information that the child is not enrolled or eligible for enrollment in the tribe is not determinative of the child's membership status unless the tribe also confirms in writing that enrollment is a prerequisite for membership under tribal law or custom. There is a difference between the terms membership and enrollment for some tribes. Some tribes have only certain periods when enrollment is open but a child may still be eligible for membership. Every tribe is entitled to determine the way their membership will be structured and every tribe may have different requirements for membership. Additionally, membership requirements for tribes may change from time to time. Thus, you must check with each tribe, every time, for every child, even if a sibling or cousin has been in the system previously and the tribal determination was that ICWA did not apply. In the absence of a contrary determination by the tribe, a determination by the Bureau of Indian Affairs (“BIA”) that a child is or is not a member of or eligible for membership in that tribe is conclusive.

State Court Determination [WIC § 224.3(e)(3); Cal. Rules of Court, rule 5.482(d)] Sixty days after the tribe or BIA has received proper notice and neither the tribe nor the BIA has provided a determinative response, the court may determine that the ICWA does not apply to the proceedings. You must have the green return receipt signed by the tribe or BIA indicating that they received notice 60 days prior to the court considering the determination. The court shall reverse its determination of the inapplicability of the ICWA and apply the act prospectively if a tribe or BIA subsequently confirms that the child is an Indian child.


PRACTICE TIP: A state court can only make a determination that ICWA will or will not apply in a case. A state court cannot make a determination as to whether a child is or is not an Indian child. Only a tribe or the BIA can determine that, it is a matter of sovereignty.

Supplemental Notice [WIC § 224.3(e)(3)&(f); Cal. Rules of Court, rule 5.482(d)] Regardless of a determination that the ICWA does not apply to the proceedings, if you or the court subsequently receives any new information regarding the Indian status of the child that was not previously available or included in the notice you have to provide the additional information to any tribes entitled to notice and the BIA.

Jurisdiction [25 USC § 1911; WIC § 224.4, 305.5); Cal. Rules of Court, rule 5.482&5.483]

State Court Jurisdiction – Tribal Intervention [25 USC § 1911(c); WIC § 224.4; Cal. Rules of Court, rule 5.482(e)] The Indian child's tribe and Indian custodian have the right to intervene at any point in an Indian child custody proceeding in state court. The tribe may intervene either orally or in writing. The tribe may designate anyone they want to serve as their representative. The person may be an attorney (at the tribe’s expense), an employee of the tribe who may or may not be Indian, or anyone else the tribes designates. If the tribe intervenes in the case they are a party and should be afforded all the rights and courtesies of any party in the case. If a tribe chooses not to intervene in the case, all of the provisions of the ICWA still apply. It is not the tribe’s duty to ensure compliance with the ICWA. PRACTICE TIP: Ultimately you, as the social worker are responsible for compliance with all the provisions of ICWA whether the tribe is involved in the case or not. In any proceeding in state court, the court shall give full faith and credit to the public acts, records, judicial proceedings, and judgments of any Indian tribe applicable to the proceeding to the same extent that such entities give full faith and credit to the public acts, records, judicial proceedings, and judgments of any other entity.

Tribal Jurisdiction – Exclusive and Concurrent [25 USC § 1911; WIC § 305.5); Cal. Rules of Court, rule 5.483]


A tribal court, for the purposes of the ICWA is a court with jurisdiction over child custody proceedings and which is a court established and operated under the code or custom of an Indian tribe, or any other administrative body of a tribe which the tribe has given authority over child custody proceedings. Tribal courts may look very different from what you may be used to in state court. Tribal court proceedings may take place in a conference room, the judge may not have any formal

legal training, and in fact there may not be any lawyers involved at all. In contrast some tribal courts are just as formal as any state or federal court. Every tribe is entitled to establish a court that reflects what they think will best serve their tribal community. There are tribal courts in California. They range in style and size just as the tribes in California do. Many of them are only in session part-time. Some are consortium courts that are shared by several tribes. Some only hear certain types of cases for example housing or child welfare. There are also many tribes outside of California that have courts.

Exclusive Jurisdiction [25 USC § 1911(a); WIC § 305.5(a)&(d)-(f); Cal. Rules of Court, rule 5.483(a)] In general a tribal court has exclusive jurisdiction over proceedings involving Indian children who reside or are domiciled on the tribe’s reservation, or are wards of the tribal court, regardless of domicile or residence. Most tribes in the United States have exclusive jurisdiction over children residing or domiciled within the reservation. An Indian child's domicile or place of residence is determined by that of the parent, guardian, or Indian custodian with whom the child maintained his or her primary place of abode at the time the Indian child custody proceedings were initiated. Thus it is possible for a tribe outside of California to have exclusive jurisdiction over a child temporarily located in California. Tribes in California do not exercise exclusive jurisdiction but do have concurrent jurisdiction as discussed below. You may remove an Indian child who is under the exclusive jurisdiction of a tribal court but is temporarily located off the reservation for the emergency placement of the child in order to prevent imminent physical damage or harm to the child. You are required to ensure that the emergency removal or placement terminates immediately when the removal or placement is no longer necessary to prevent imminent physical damage or harm to the child. You are required in these situations to initiate an Indian child custody proceeding, transfer the child to the jurisdiction of the Indian child's tribe, or restore the child to the parent or Indian custodian, as soon as possible. If you remove a child who is under the exclusive jurisdiction of a tribal court, you are required to provide notice of the removal to the tribe no later than the next working day following the removal along with all relevant documentation to the tribe regarding the removal and the child's identity. If the tribe determines that the child is an Indian child, you are required to


transfer the child custody proceeding to the tribe within 24 hours after receipt of written notice from the tribe of that determination.

Concurrent Jurisdiction [25 USC § 1911(a); WIC § 305.5(a)] In 1953 Congress enacted what is commonly known as Public Law 280 or P.L. 280.75 Congress, via P.L. 280 delegated to some states, including California, partial jurisdiction over Indian reservations located within the state’s borders.2 This provision divests tribes in California of their exclusive jurisdiction under the ICWA, but tribes in California retained concurrent jurisdiction. This was affirmed in 2005 in a 9th circuit case, Doe v. Mann.76 What this means is that tribes in California have concurrent jurisdiction over child welfare matters arising on the reservation and if they have a tribal court may initiate proceedings in tribal court over these matters.

Transfers from State to Tribal Court [25 USC § 1911(b); WIC § 305.5(b)&(c); Cal. Rules of Court, rule 5.483(b)-(h)] If a tribe that does not have exclusive jurisdiction over the child custody proceeding initiated in state court, either parent, the Indian custodian, or the child's tribe may petition the court (orally or in writing) to transfer the case to the tribe’s court. If any of the following circumstances exist the case cannot transfer:

a) One or both of the child's parents object to the transfer. b) The child's tribe does not have a “tribal court.” c) The tribal court of the child's tribe declines the transfer.

Absent any of the above circumstances, the state court must transfer the case unless the court finds good cause not to transfer. Good cause not to transfer the proceeding may exist if:

a) The evidence necessary to decide the case cannot be presented in the tribal court without undue hardship to the parties or the witnesses and there is no practical way to resolve this hardship.

b) The proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition within a reasonable time after receiving notice of the proceeding. It shall not, in and of itself, be considered an unreasonable delay for a party to wait until reunification efforts have failed and reunification services have been terminated before filing a petition to transfer.

c) The Indian child is over 12 years of age and objects to the transfer.

2 Public Law 280 is a complex statute that has created jurisdictional confusion in the civil and criminal justice arenas in California since it was passed. Therefore the complete implications of the statute will not be addressed here, only the provisions that are relevant to child welfare practice in California.


d) The parents of the child over five years of age are not available and the child has had little or no contact with the child's tribe or members of the child's tribe.

Socioeconomic conditions and the perceived adequacy of tribal social services or judicial systems may not be considered in a determination that good cause exists. The burden of establishing good cause not to transfer shall be on the party opposing the transfer.

Evidentiary Requirements [25 USC § 1912(e)&(f); WIC § 224.6, 361.7; Cal. Rules of Court, rule 5.484 & 5.485]

Burdens of Proof [25 USC § 1912(e)&(f); WIC § 224.6, 361.7; Cal. Rules of Court, rule 5.484(a)&(c) & 5.485] The burden of proof that must be met for the court to order foster care in an ICWA case is clear and convincing evidence that continued custody with the parent or Indian custodian is likely to result in serious emotional or physical damage, including the testimony of a qualified expert witness. The burden of proof that must be met for the court to order termination of parental rights in an ICWA case is beyond a reasonable doubt that continued custody with the parent or Indian custodian is likely to result in serious emotional or physical damage, including the testimony of a qualified expert witness. The court must also consider evidence of the prevailing social and cultural standards of the Indian child’s tribe including family organization and child rearing practices.

Qualified Expert Witnesses [25 USC § 1912(e)&(f); WIC § 224.6, 361.7; Cal. Rules of Court, rule 5.484 & 5.485]

The Purpose of the Testimony The ICWA and state law requires expert witness testimony prior to the state court ordering an involuntary foster care placement or termination of parental rights. The requirement of the testimony of an expert witness is designed to eliminate removal of Indian children from their families based on cultural bias. Certainly, things have improved since the ICWA was passed in 1978, however, as the current statistics show; Native Children are still removed from their homes at a higher rate than other children in California. Due to the fact that tribes still have very different social and cultural norms when it comes to childrearing than most of the social workers in California, it is critical that you ensure that the qualified expert witness requirement is met in every case involving an Indian child. It is a


necessary tool to utilize to ensure that cultural bias is not causing the over-representation of Native American children in care. Beyond that, it’s the law.

Who is “Qualified” to Provide Expert Testimony [25 USC § 1912(e)&(f); WIC § 224.6(a)-(c); Cal. Rules of Court, rule 5.484(a) & 5.485(a)(2)] An expert witness in an ICWA proceeding must be qualified to testify that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child, based on the prevailing social and cultural standards of the child’s tribe. Persons who are qualified to provide this testimony may include, but is not limited to, a social worker, sociologist, physician, psychologist, traditional tribal therapist and healer, tribal spiritual leader, tribal historian, or tribal elder. The expert is not required to have any specific degree, formal education or training. The expert cannot be an employee of your department. Persons with the following characteristics are most likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings:

1) A member of the Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices.

2) Any expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child's tribe.

3) A professional person having substantial education and experience in the area of his or her specialty.

The court or any party may request the assistance of the Indian child's tribe or Bureau of Indian Affairs agency serving the Indian child's tribe in locating persons qualified to serve as expert witnesses. The Administrative Office of the Courts (AOC) maintains a list of people who are available to provide testimony at www.courtinfo.ca.gov (insert “ICWA” in the search box). This list may be helpful if the tribe is not able to provide names for any potential witnesses. PRACTICE TIP: It is your duty to secure and pay for the expert witness to testify. If you are requesting a tribal member or employee to provide testimony, you should expect to compensate them the way you would any other expert providing testiomy. Just because they are affiliated with the tribe does not mean they are availabe to provide this service free of cost. It is unfair to presume that someone can or should work for free because of their “obligation” to “do the right thing” and help you, the tribe or the family.

http://www.courtinfo.ca.gov/


Live Testimony v. Written Declarations [WIC § 224.6(e)] The court may accept a declaration or affidavit from a qualified expert witness in lieu of live testimony only if all of the parties have so stipulated in writing. This is so that all parties will have the opportunity to cross-examine the expert witness, and potentially challenge their qualifications to provide the required testimony. PRACTICE TIP: Many times the qualified expert witness in an ICWA case is erroneously referred to as the “ICWA expert.” The witness is not there to testify based on their expertise in the ICWA, which is a series of legal requirements. The witness there to testify based on their expertise in tribal child welfare and their knowledge of the tribe’s social and cultural standards. The term “ICWA expert” implies that the witness is only qualified to testify to the legal requirements of ICWA.

Active Efforts [25 USC § 1912(d); WIC § 361.7; Cal. Rules of Court, rule 5.484(c) & 5.485(a)(1), rule 5.484(c]

Culturally Appropriate Case Planning [25 USC § 1912(d); WIC § 361.7; Cal. Rules of Court, rule 5.484(c) & 5.485(a)(1)] The ICWA requires you to make active efforts to provide services designed to prevent the breakup of the Indian family. You must provide the court with evidence that you have made these active efforts and that these efforts have proved unsuccessful in order for the court to order foster care or termination of parental rights. There is no standard definition for what constitutes active efforts. There is not one model case plan that meets the active efforts standard. Whether active efforts have been made is determined on a case-by-case basis. This is because every Indian family’s situation and needs will be different, and services provided should be case specific. The active efforts must take into account the prevailing social and cultural values, conditions, and way of life of the Indian child's tribe. In creating a culturally appropriate case plan you must utilize the available resources of the Indian child's extended family, tribe, tribal and other Indian social service agencies, and individual Indian caregiver service providers. In other words work with the family and the tribe. Contact information for tribes can be found at the California Department of Social Services (CDSS) website: www.childsworld.ca.gov ICWA link.

Securing the Child’s Tribal Membership [Cal. Rules of Court, rule 5.484(c)(2)]

http://www.childsworld.ca.gov/


If the child is eligible for membership in their tribe but not yet a member, your “active efforts” must include any steps necessary to secure the child’s tribal membership. The importance of securing the child’s tribal membership cannot be stressed enough. It is a permanent political connection for this child which opens the door to personal and social connections as well. For most Indian children, securing their tribal membership would be handled by their parents, for obvious reasons, that is unlikely to happen for the children you are working with. Thus, the duty falls to you. Since membership requirements and procedures are different for every tribe, you will need to check with the tribe on a case-by-case basis to find out what you need to do. Start by calling the tribal offices to see if there is a membership department, if not someone in social services or even on the tribal council may be able to help.

Resources for American Indian Children and Families There are many resources available to Indian children and families in the Central California Area. These resources include health services, mental health services, substance abuse programs, parenting classes and more. These services are provided by Indian health service centers, non-profit organizations and tribes and tribally organized entities.

Statewide Resources Some great resources for general ICWA information in California are: • California Department of Social Services: : www.childsworld.ca.gov (click on ICWA)

The CDSS has a section of their website dedicated to the ICWA. They also have a staff position dedicated to working on ICWA issues in California. Currently (March 2010) that person is Maria Enriquez, ICWA Specialist, (916) 651-6031, [email protected]

• CFCC ICWA Initiative: at: www.courtinfo.ca.gov (enter ICWA into the search box)

Judicial Council’s Administrative Office of the Courts, Center for Families, Children and the Courts (“CFCC”) has an ICWA Initiative maintains a website with a large collection of very useful materials. This website includes a list of resources online that are organized by region and service type, a list of potential expert witnesses, ICWA educational material and more.

Local Resources In order to find resources specific to your county you can search online or in the yellow pages for Indian or Native American specific services. Additionally the Central Valley ICWA Task Force works to improve ICWA compliance in the central California area and is a great source of information on services that may be available to Indian children and families.

http://www.childsworld.ca.gov/

http://www.courtinfo.ca.gov/


Placement Preferences [25 USC § 1915; WIC § 361, 361.31, 361.7, 366.26; Cal. Rules of Court, rule 5.484(b)(f) & (g)]

Foster Care and Guardianship Placements [25 USC § 1915(b); WIC § 361, 361.31(a)&(b); Cal. Rules of Court, rule 5.484(b)(1) & (f)] Any foster care or guardianship placement of an Indian child, or any emergency removal of a child who is known to be, or there is reason to know that the child is, an Indian child shall be in the least restrictive setting which most approximates a family situation and in which the child's special needs, if any, may be met. The child shall also be placed within reasonable proximity to the child's home, taking into account any special needs of the child. Preference shall be given to the child's placement with one of the following, in descending priority order:

1) A member of the child's extended family. 2) A foster home licensed, approved, or specified by the 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 which has a program suitable to meet the Indian child's needs.

Adoptive Placements [25 USC § 1915(a); WIC § 361, 361.31(a)&(c), 366.26(c)(1)(B)(vi); Cal. Rules of Court, rule 5.484(b)(1)] In any adoptive placement of an Indian child, preference shall be given to a placement with one of the following, in descending priority order:

1) A member of the child's extended family 2) Other members of the child's tribe. 3) Another Indian family.

Notice that neither list above includes non-relative, non-Indian placements. This is intentional to ensure that we reverse the practice of removing Indian children from their families and placing in non-Indian homes. Yet many Indian children are still placed in non-relative, non-Indian homes. Check your county statistics online at: http://cssr.berkeley.edu/ucb_childwelfare/CdssFiles.aspx

http://cssr.berkeley.edu/ucb_childwelfare/CdssFiles.aspx


Not all tribes support the concept of termination of parental rights. WIC § 366.26(c)(1)(B)(vi) defines an exception specifically for Indian children where either termination of parental rights would interfere with the child’s relationship with the child or the tribe has indentified an alternative long term placement option. Many tribes in California are opposed to adoption with termination of parental rights. It is not that they do not acknowledge the need for someone other than the biological parents to care for some children, no matter how unequipped for parenting, a person’s status as the parent of a child survives indefinitely, even if they are never capable of parenting. It relates directly to the ways that tribes view kinship and how closely kinship relationships are tied to every aspect of tribal life. Tribes may have different models for adoption that do not involve termination of parental rights; these are sometimes referred to as customary adoptions, or traditional adoptions. Many times in these tribal proceedings parent’s rights are modified rather than terminated.

Tribal Resolution for Order of Placement [25 USC § 1915(c); WIC § 361, 361.31(d); Cal. Rules of Court, rule 5.484(b)(4)] The tribe may establish a different order of placement preference. You must follow the order of preference established by the tribe, so long as the placement is the least restrictive setting appropriate to the particular needs of the child.

Standards for Placing Indian Children [25 USC § 1915(d); WIC § 361, 361.31(e)-(g); Cal. Rules of Court, rule 5.484(b)(1)(g)] You must apply the prevailing social and cultural standards of the Indian community in meeting the placement preferences. A determination of the applicable prevailing social and cultural standards may be confirmed by the Indian child's tribe or by the testimony or other documented support of a qualified expert witness who is knowledgeable regarding the social and cultural standards of the Indian child's tribe. You must use the services of the Indian child's tribe, whenever available through the tribe, in seeking to secure placement within the order of placement preference established in this section and in the supervision of the placement. Where appropriate, the placement preference of the Indian child, when of sufficient age, or parent shall be considered. In applying the preferences, a consenting parent's request for anonymity shall also be given weight by the court or agency effecting the placement.

Good Cause to Deviate from the Placement Preferences [25 USC § 1915(a)&(b); WIC § 361, 361.31(h)-(j); Cal. Rules of Court, rule 5.484(b)(2),(3),(5)&(6)]


The court may determine that good cause exists not to follow placement preferences. Good cause to deviate from the placement preference may include the following considerations:

1) Requests of the parent or Indian custodian 2) Requests of the Indian child 3) Extraordinary physical or emotional needs of the Indian child as established by the

testimony of a qualified expert witness. 4) Unavailability of suitable families based on a diligent effort to identify families meeting

the preference criteria. If you are recommending that the court order a placement that does not meet the placement preferences you have the burden of establishing the existence of good cause not to follow placement preferences. When no preferred placement is available, active efforts shall be made to place the child with a family committed to enabling the child to have extended family visitation and participation in the cultural and ceremonial events of the child's tribe.

Chapter 4 Review Questions 1. What types of proceedings are covered by the ICWA? 2. Are there any types of cases when it is okay to skip inquiry? 3. When is it okay to stop using the Form ICWA-030 – Notice of Child Custody Proceeding

for an Indian Child and just send notice as you would to any party? 4. Who makes the determination that ICWA applies or doesn’t apply? 5. Do tribes in California have exclusive jurisdiction over child welfare matters on the

reservation? 6. Can the qualified expert witness provide written testimony instead of appearing in

person? 7. Who is responsible for making active efforts to secure the child’s tribal membership, the

parents, the social worker or the tribe? 8. What must you demonstrate to the court before the court can order a placement that

deviates from the placement preferences for ICWA cases?


Works Cited • Senate Executive Journal. 32nd Congress, 1st Session, July 8, 1852. • California Welfare and Insitutions Code. 2008. • California Rules of Court. 2008. • Beck, David R. M. "Developing a Voice: The Evolution of Self-Determination in an Urban

Indian Community." Wicazo Sa Review, 2002: 117-141. • "BIA Guidelines for State Courts; Indian Child Custody Proceedings." Federal Register. Vol.

44. Department of the Interior, Bureau of Indian Affairs, 1979. 67,584. • BIA Office of Federal Acknowledgement. "Office of Federal Acknowledgement." Indian

Affairs. August 3, 2009. http://www.doi.gov/bia/docs/ofa/admin_docs/num_petitioners_state_092208.pdf (accessed August 7, 2009).

• Brave Heart, Maria Yellow Horse. "The Historical Response Among Natives and its Relationship to Substance Abuse: A Lakota Illustration." Healing and Mental Health for Native Americans: Speaking in Red (AltaMira Press), 2004: 7/18.

• Burnett, Governor Peter. "Message to the California Stae Legislature." California State Senate Journal. January 7, 1851. 15.

• "California Department of Social Services Outcome Measure 4E (1) - Ethnicty of placements for children identified with ICWA eligibility: Oct - Dec 2008." Vers. CWS/CMS Q4, 2008 Extract. University of California at Berkeley Center for Social Services Research. May 2009. http://cssr.berkeley.edu/cwscmsreports/cdss/CDSS_4E1_ICWA_sep2008_s.html (accessed July 27, 2009).

• Castillo, Edward D. "Additional Information." California Native American Heritage Commission. 1998. http://www.nahc.ca.gov/califindian.html (accessed July 22, 2009).

• Child, Brenda J. Boarding School Seasons. University of Nebraska Press, 1998. • Doe v. Mann. 415 F3d 1038 (United States Court of Appeals for the Ninth Circut, 2005). • "Final Report to the American Indian Policy Review Commission." Report on Federal, State,

and Tribal Jurisdiction. Washington: U.S. Government Printing Office, July 1976. • Heizer, Robert F. The Destruction of California Indians. Lincoln & London: University of

Nebraska Press, 1993. • Heizer, Robert F., and Alan F. Almquist. the Other Californians: Prejudice and Discrimination

Under Spain, Mexico, and the United States to 1920. Berkeley, Los Angeles, London: University of California Press, 1971.

• Hurtado, Albert L. Indian Survival on the California Frontier. Binghamton, New York: Vail-Ballou Press, 1988.

• "Indian Adoption Project." The Adoption History Project. July 11, 2007. http://darkwing.uoregon.edu/~adoption/topics/IAP.html (accessed July 30, 2009).

• "Indian Child Welfare Act." The Adoption History Project. July 11, 2007. http://darkwing.uoregon.edu/~adoption/topics/ICWA.html (accessed August 4, 2009).

• "Indian Child Welfare Act." Title 25 of the United States Code section 1901 et. seq. 1978. • "Indian Entities Recognized and Elligible To Recieve Services From the United Staet Bureau

of indian Affairs." Federal Register. Vols. 73, No. 66. April 4, 2008. 18553-18557.


• Intertribal Friendship House (Oakland, California) Community History Project. Urban Voices: the Bay Area American Indian community. Edited by Susan Lobo. Oakland: University of Arizona Press, 2002.

• Iverson, Peter. We Are Still Here: American Indians in the Twentieth Century. Wheeling: Harlan Davidson, Inc., 1998.

• Johnston-Dodds, Kimberly. Early California Laws and Policies Related to California Indians. Requested by Senator John Burton, Sacramento: California Research Bureau, California State Library, 2002.

• Lake, Allison. Colonial Rosary: Spansih and Indian Missions of California. Athens: Ohio University Press, 2006.

• "Map - Tribal Profile - California." The Contemporary Native America Series. Tribal Data Resources, 1996, 1997.

• Needell, B., Webster, D., Armijo, M., Lee, S., Dawson, W., Magruder, J., Exel, M., Glasser, T., Williams, D., Zimmerman, K., Simon, V., Putnam-Hornstein, E., Frerer, K., Cuccaro-Alamin, S., Winn, A., Lou, C., Peng, C. & Holmes, A. "Child Welfare Services Reports for California: 2008 Disparity Indices by Ethnicity ." University of California at Berkeley Center for Social Services Research. 2009. http://cssr.berkeley.edu/CWSCMSreports (accessed July 27, 2009).

• Phillips, George H. The Enduring Dtruggle: Indians in California History. Sparks, NV: Materials For Today's Learning, INC., 1996.

• Prucha, Francis P. Documents of the United States Indian Policy. Lincoln & London: University of Nebraska Press, 1990.

• Sandos, James A. Converting California: Indians and Franciscans in the Missions. New Haven & London: Yale University Press, 2004.

• "State Jurisdiction over offenses committed by or against Indians in the Indian country." United States Code. Vol. 18. 1953. 1162.

• The California State Library. History and Culture - State Symbols. July 24, 2009. http://www.library.ca.gov/history/symbols.html#Heading10 (accessed July 24, 2009).

• Tinker, George E. Missionary Conquest: The Gospel and Native American Cultural Genocide. Minneapolis: Augsburg Fotress, 1993.

• "Title 25 - Indians." Code of Federal Regulations. 2004. • "Title 25 Section 659. Distribution of judgement fund." United States Code. 1968. • U.S. Census Bureau. "United States Census - 2000." 2000.

http://www.census.gov/main/www/cen2000.html (accessed July 27, 2009). • U.S. House of Representatives. "Establishing Standards for the Placement of Indian Children

in Foster or Adoptive Homes, to Prevent the Breakup of Indian Families, and for other Purposes." Report No. 1386. 2nd Session of the 95th Congress, 1978.


1 (Brave Heart 2004, 7) 2 (Brave Heart 2004, 7) 3 (Brave Heart 2004, 8) 4 (Tinker 1993, 6) 5 (Tinker 1993, 42) 6 (Tinker 1993, 44) 7 (Tinker 1993, 44) 8 (Sandos 2004, 14) 9 (Sandos 2004, xv) 10 (Lake 2006, 48-49, 66-67) 11 (Lake 2006, 66-67) 12 (Hurtado 1988, 20-26) 13 (Hurtado 1988, 1) 14 (Hurtado 1988, 1) 15 (Lake 2006, 49) 16 (The California State Library 2009) 17 (Heizer, The Destruction of California Indians 1993, 11-39) 18 (Heizer, The Destruction of California Indians 1993, 243-265) 19 (Castillo 1998) 20 (Phillips 1996, 45) 21 (Phillips 1996, 46) 22 (Burnett 1851) 23 (Johnston-Dodds 2002) 24 (Hurtado 1988, 135-138) 25 (Heizer, The Destruction of California Indians 1993, 104) 26 (Castillo 1998) 27 (Senate Executive Journal 1852) 28 (Phillips 1996, 50) 29 (Heizer and Almquist 1971, 136) 30 (Heizer and Almquist 1971, 136) 31 (Heizer and Almquist 1971, 136) 32 (25 USC § 659 1968) 33 (Castillo 1998) 34 (Beck 2002, 119-120) 35 (Beck 2002, 120) 36 (Beck 2002, 120) 37 (Phillips 1996, 72) 38 (Phillips 1996, 72) 39 (Phillips 1996, 73) 40 (Intertribal Friendship House (Oakland, California) Community History Project 2002, 26) 41 (Intertribal Friendship House (Oakland, California) Community History Project 2002, 26) 42 (Prucha 1990, 158) 43 (Iverson 1998, 21) 44 (Prucha 1990, 200) 45 (Prucha 1990, 200) 46 (Iverson 1998, 20-21) 47 (Iverson 1998, 21) 48 (Child 1998, 65-67) 49 (Prucha 1990, 254) 50 (Prucha 1990, 256) 51 (Indian Adoption Project 2007)


52 (Indian Adoption Project 2007) 53 (Indian Adoption Project 2007) 54 (Indian Child Welfare Act 2007) 55 (Indian Adoption Project 2007) 56 (Indian Adoption Project 2007) 57 (25 USC § 1901 et. seq. 1978) 58 (U.S. House of Representatives 1978, 10) 59 (U.S. House of Representatives 1978, 10) 60 (Final Report to the American Indian Policy Review Commission 1976, 81-82) 61 (Final Report to the American Indian Policy Review Commission 1976, 82) 62 (Final Report to the American Indian Policy Review Commission 1976, 81-85) 63 (U.S. House of Representatives 1978, 9) 64 (U.S. House of Representatives 1978, 9) 65 (73 Fed.Reg. 18553 2008, 18553-18556) 66 (U.S. Census Bureau 2000) 67 (U.S. Census Bureau 2000) 68 (73 Fed.Reg. 18553 2008) 69 (BIA Office of Federal Acknowledgement 2009) 70 (Map - Tribal Profile - California 1996, 1997) 71 (Needell 2009) 72 (California Department of Social Services Outcome Measure 4E (1) - Ethnicty of placements for children identified with ICWA eligibility: Oct - Dec 2008 2009) 73 (25 USC § 1901 et. seq. 1978) 74 (25 USC § 1921 1978) 75 (PL-280, 18 U.S.C. § 1162 1953) 76 (Doe v. Mann 2005, 1058-1060)

Following The Spirit of the Indian Child Welfare Act (ICWA) A guide to understanding the benefits of providing culturally appropriate services to

Native American families from non–federally recognized tribes within the juvenile dependency and delinquency systems1

In an effort to ensure proper inquiry and noticing and to reduce the number of ICWA-related appeals in child welfare cases, this handout is intended to help social workers and others respond when they encounter children and families that report American Indian or Alaska Native ancestry yet find they are not from a federally recognized tribe. What is good social work practice in these cases, and how can courts support culturally centered practice that results in positive outcomes? How to Provide “Spirit of the Law” ICWA Services

• Find out which tribes and Native American resources are in your area. • Visit and establish connections with local tribes and Native American resources

regardless of federal recognition status. • Request ICWA training from tribal resources, California Department of Social Services

training academies, or the Administrative Office of the Courts. • Conduct a proper inquiry of possible Native American ancestry in every case at the front

end and throughout the duration of the case if family members provide additional lineage information.

• Connect a child and family with their tribe and local Native American resources regardless of tribal affiliation.

• Assist the child or family with the tribal enrollment process but understand it is up to the tribe to determine who is or is not eligible for enrollment.

• Conduct placements consistent with ICWA placement preferences even though not technically required. In the case of non–federally recognized tribes, tribal members would likely meet requirements as nonrelated extended family members because tribal communities tend to be related or close-knit communities.

• Consider the child’s tribal members as viable options for holiday visits, tutors, mentors, Court Appointed Special Advocates, etc.

1 This document was developed with the Fresno County Department of Social Services, Child Welfare Services, and Placer County System of Care as part of the American Indian Enhancement of the Casey Family Programs/Child and Family Policy Institute of the California Breakthrough Series on addressing disproportionality 2009–2010 in collaboration with the American Indian Caucus of the California ICWA Workgroup, Child and Family Policy Institute of California, Stuart Foundation, and Tribal STAR.

The Benefits of Providing “Spirit of the Law” ICWA Services

• If the child’s tribe is seeking federal recognition and is granted such recognition, formal ICWA case services, such as active efforts to prevent the breakup of the Indian family, will be required. If ICWA active efforts are attempted before the federal recognition, it is less disruptive for the child than having to change services and placement to make them in accordance with ICWA.

• Welfare and Institutions Code section 306.6 leaves the determination of services to individuals of non-recognized tribes to the discretion of the court that has jurisdiction.

• Even if individuals are not associated with a federally recognized tribe, they can still be part of an Indian community, which can serve as a strength and provide resources that enhance resilience factors for youth.

• Native American agencies that serve youth regardless of their tribe’s status can have youth groups that provide mental health and substance abuse services as well as fun trips, at no cost to the county.

• Many resources available to Native Americans do not require status in a federally recognized tribe (such as tribal Temporary Assistance for Needy Families (TANF), Native American health centers, and title VII Indian education programs).

• Some Native American health centers can access funding for residential treatment in and out of the state for children who are from non–federally recognized tribes.

• When culturally centered practice is provided as early as possible, it can result in positive outcomes for tribal youth.

• Linking a child to cultural resources that support his or her development into a healthy self-reliant adult can reduce the number of times the person may enter public systems.

• Culturally centered practice provided at the front end and throughout the lifespan of the case, regardless of the recognition status of the tribe, can reduce the public burden of cost over time.

Historical Background

• In 1848, gold was discovered in Coloma, California. • In 1851 and 1852, representatives of the United States entered into 18 treaties with tribes

throughout California that would have provided for more than 7.5 million acres of reserve land for the tribes’ use. These treaties were rejected by the U.S. Senate in secret session. The affected tribes were given no notice of the rejection for more than 50 years, and the promised reserve lands were never provided.

• In 1928, a census was conducted to determine the number of American Indians in California, resulting in the establishment of the 1933 California Indian Rolls (also referred to as the California Judgment Rolls). The purpose of the census and the rolls was

to determine the number of Indians in California who had families alive in 1851–1852, when treaties were signed by the original Californians.

• From 1953 to 1964, called the “Termination Era,” the U.S. Congress terminated the federal recognition status of more than 40 California tribes. These tribes were deemed as not federally or state recognized, though previously descendants of these tribes were federally recognized.

• Many tribes that were terminated are currently seeking federal recognition by the U.S. government.

• Tribal communities throughout California are active and thriving, whether or not they have federal recognition.

• Descendants of family members listed on the California Judgment Rolls can use this documentation of Native American ancestry to provide information as to tribal affiliation. Note: Finding an ancestor on the roll does not mean an individual is an enrolled member in that particular tribe. Only one tribe can be listed on this document, and it is possible to descend from more than one tribe.

• Senate Bill 678, passed in 2006 by the California Legislature, allows participation of non–federally recognized tribes, on request and at the discretion of the judge in the dependency matter. This expands the option and availability of culturally appropriate services to children from non-recognized tribes.

Additional Tips for Practice

• Some tribes include descendants as members, not only those who are enrolled. • Best practices will vary depending on the location, available resources, and tribe. • If you are having challenges in working with the family, local Native American agencies

or tribes can assist. • If the family requests additional resource information to trace its lineage, you can provide

the following resource information: o The tribe; o Mission church records; o Mormon genealogical records; o Historical societies and museums; o Genealogical Web sites; and o Historical statistical information and documents in the county of the family’s origin.

CCTA │ CA Common Core Training: ICWA │ March 2010 1

HISTORY COMPLIANCE AND APPLICATION

Indian Child Welfare Act (ICWA)

Central California Training Academy

HISTORY, COMPLIANCE AND APPLICATION

Ours Goals for TodayTo explain the historical basis and purpose of the Indian Child Welfare Act (ICWA)

To clarify the essential elements of compliance with the ICWA

To help you practically apply these essential elements in an

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To help you practically apply these essential elements in an ICWA case.

TRIBES AND ICWA

Historic Background

TRIBES AND ICWA


Understanding ICWA in CALIFORNIA

HISTORICAL TRAUMA IN THE GOLDEN STATE

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Historical TraumaMaria Yellow Horse Brave Heart, PhD in Clinical Social Work

Concept of historical trauma and historical unresolved grief theory

Defined: “A cumulative emotional and psychological wounding over the lifespan and across generations emanating

5

wounding over the lifespan and across generations, emanating from massive group trauma experiences.”

Missions: The Untold Story1769 Catholic Missionaries establish first of 21 coastal missions

Coercive religious, labor camps, where many Natives were enslaved

Most if not all missions had one or more outbreak of disease

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Most if not all missions had one or more outbreak of disease


Gold Discovered 1848The Golden State

• “eureka” = “I found it”

• Grizzly Bear

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100,000 “settlers” came to CA in search of gold

Lawlessness and mass murder of Indian people by miners

Death of 100,000 Indians in 2 yrs Due to disease and murderunprecedented losses

War of Extermination1851 Annual Address to the legislature, Gov. Peter H. Burnett:

“That a war of extermination will continue to be waged between the races, until the Indian race becomes extinct, must be expected.”

8

Many laws passed in CA allowing for indentured servitude of Indian men women and children.

Thousands of children taken as slave laborersOften parents were killed in order to take children for slavery

The 18 Treaties1851-1852: BIA negotiated treaties reserving over 8 million acres

The U.S. Senate in closed exec session refused to ratify the treaties under an injunction of secrecy

1905 Secrecy finally lifted

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1905 Secrecy finally lifted

1906 Congress funds purchase of 100 “Rancherias”


Relocation ProgramLate 1940’s BIA began relocating Indians from tribes outside of CA to major urban centers in an effort to assimilate them

Los Angeles and Bay Area were both relocation centersUS Census statistics for Indians in Los Angeles County

1970 = 24 509

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1970 = 24,5091950 = 1,671

1960 = 8,109

1970 = 24,509

Early U.S. Indian Child Welfare

BOARDING SCHOOLS, ADOPTIONS & CONGRESS

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The Indian Problem2 pronged solution

Removal/reservationsCivilization

Goal…

A i il ti !

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Assimilation!


U.S. Government Indian Schools1870 Congress authorized an annual appropriation of $100,000, “for the support of industrial and other schools among tribes not otherwise provided for.”

Run by Missionaries

“Kill the Indian save the man”

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Kill the Indian save the man

Assimilation v. EducationLanguage

Traditional daily lifeClothesFoodHair

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HairName

Religion

History behind ICWA1957 – Federal Indian Adoption Project

395 Native American/Alaksan Native children for adoption by non-Native Families

States followed this federal example

Evidence mounted that these placements were harmful to

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Evidence mounted that these placements were harmful to Native American children

U.S. Congress formed a task force to investigate these practices

1976 Congressional Report1977 Congressional hearings held re: ICWA


Congressional FindingsNationally:

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

16

homes and placed in foster homes, adoptive homes, or institutions

Congressional FindingsIn California:

8.4 times as many Indian as non-Indian children were in adoptive homes

90 % of these Indian children were in non-Indian homes

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2.7 times as many Indian children as non-Indian children in foster care.

No data on ethnicity of the foster care placements

3.80%

8.30%

4.00%

5.00%

6.00%

7.00%

8.00%

9.00%Children in Care: CA 1976

Non-Indian

I di

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0.40% 0.29%

0.00%

1.00%

2.00%

3.00%

4.00%

Adoption Foster Care

Indian


Congressional FindingsIndian 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

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practices were stopped

1978 Congress passes the Indian Child Welfare Act

WHERE ARE WE NOW?

ICWA IN CALIFORNIA’S JUVENILE DEPENDENCY SYSTEM

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Indians in CA Today107 Federally Recognized Tribes

Many unrecognized tribesFederal Recognition/acknowledgment = political status2008: 74 Petitions filed with BIA for federal recognition

L t b f I di l

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Largest number of Indian people

Majority from out of state tribes


Indian Children in CA TodayNative American children are the 2nd most over-represented population in the child welfare system

Majority of out of home placements recorded are not in compliance with ICWA

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2.912

2.1082

2.5

3

3.5

n Ca

re

Disparity by EthnicityCalifornia

0.654 0.605 0.517

0.168

0

0.5

1

1.5

Total Black Native American

Hispanic White Asian

% i

2008

IC What?

ICWA Overview

IC-What?


What is the ICWA?Federal law passed in 1978

Establishes minimum federal 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

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in state child custody proceedings

Ensures state courts recognize tribal political status

What is SB 678?SB 678 pased 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

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Judicial Council Rules and Forms in response to legislation

Definitions

From ICWA 25 USC 1903

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Indian ChildAn unmarried person who is under the age of 18 and is either:

A member of a federally-recognized tribe, orEligible for membership in a federally-recognized tribe and is the biological child of a member of a federally-recognized tribe

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g y g

Enrollment v. Membership

Indian TribeAny tribe, band, nation, or other organized group or community of Indians that has been recognized as eligible for services provided by the federal government

Federally Recognized TribesIncludes any Alaskan native village

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y gWIC 306.6 – discretionary participation for unrecognized tribesDoes not include indigenous people/tribes from outside the U.S. borders

Indian Child’s TribeThe tribe of which the child is a member or eligible for membership

If the child is eligible for membership in more than one tribe, the tribe with which the child has more significant contacts as determined by the court (see WIC 224.1(d))

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determined by the court (see WIC 224.1(d))


Extended FamilyDefined by tribal law or custom or in the absence of such law or custom;

Person 18 or over who is the child’s:GrandparentAunt or uncle

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Aunt or uncleBrother or sisterBrother-in-law or sister-in-lawNiece or nephewFirst or second cousin, orStep-parent

Indian CustodianAny Indian person who has legal custody under tribal law or custom or under State law, or to whom temporary custody has been given by the parent

No written documentation is required

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What do I have to do?

Compliance & Application

What do I have to do?


Minimum Federal Standards & California State Standards

Inquiry

Notice

Jurisdiction

Evidentiary requirements

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Qualified Expert Witness

Active Efforts

Placement Preferences

ApplicabilityFoster care placements (voluntary or involuntary):

Dependency and Delinquency

Guardianships

Adoptive placements (voluntary or involuntary)

TPR l d d

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TPR; including step-parent adoption

Custody proceeding where child is not placed with one of the parents

Includes all WIC 300 and WIC 600 proceedings, when the child is at risk of entering foster care.

Inquiry

WHO, WHAT AND WHEN TO ASK?

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InquiryThe court and the social worker have affirmative and continuing duty to ask whether the child may be an Indian child

And to record this informationMandatory Judicial Council Form: ICWA-010(A) – Indian Child

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Mandatory Judicial Council Form: ICWA 010(A) Indian Child Inquiry Attachment

Must be filed with every 300 & 600 Petition

See Form ICWA-005-INFO – Information Sheet on Indian Child Inquiry Attachment and Notice of Child Custody Proceeding for Indian Child

Who to askFor ALL cases you must ask:

ChildParents or legal guardiansIndian Custodian (if applicable)

The duty to ask is ongoing and if you have any reason to know the

38

y g g y ychild may be an Indian child you must try to determine the child’s Indian status and get the info for the notice form by:

Interviewing extended familyContacting any possible tribes

Contacting the BIA

TIP: Use the ICWA 030 Form as an Inquiry Tool!

Indian Identity3 major parts to Native American identity

PoliticalCulturalRacial/Ethnic

ICWA is based on a political status not on race

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ICWA is based on a political status, not on race

You cannot tell if someone is Indian by the way they look


Initial FilingIf you cannot locate any parents or relatives…

File petition, check box on Inquiry Attachment that inquiry has not yet been madeYou will have to file a new form once inquiry is made and every time new information about child’s Indian ancestry is discovered

40

discovered.TIP: Court may require that you use a cover sheet if this attachment is being filed without the petition

Detention HearingIf parent(s) attends the hearing the court must order them to complete and file Form ICWA-020 – Parental Notification of Indian Status

If parent(s) does not attend, you must make reasonable diligence to inform parent(s) that court has ordered them to

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diligence to inform parent(s) that court has ordered them to complete and file Parental Notification Form

Notice

SPECIAL REQUIREMENTS FOR INDIAN CHILDREN

42


Notice BasicsAfter Inquiry, and further inquiry, if there is reason to know the child is an Indian child notice must be sent to the parent or legal guardian and Indian custodian of the child, and the child’s tribe

Judicial Council Form: ICWA-030 – Notice of Child

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Judicial Council Form: ICWA 030 Notice of Child Custody Proceeding for an Indian Child

Mandatory formRemember to attach birth certificate

Notice must comply with WIC 224.2

Reason to Know1. A person having an interest in the child provides

information suggesting the child is a member of a tribe or is eligible for membership and their parents, grandparents or great-grandparents are or were a member of a tribe.

2. The child, parents or Indian custodian lives in a

44

2. The child, parents or Indian custodian lives in a predominantly Indian community.

3. The child or family has received services or benefits from a tribe or the government ie: health services.

Notice: WIC 224.2Sent registered or certified mail return receipt requested

Remember to file the receipt in the court file

To tribal chairperson unless another agent designated

To all tribes of which the child may be a member or eligible for membership

45

for membership

BIA, area director and Secretary of the Interior

Attach the child’s birth certificate if available


Notice – Forever?For every hearing, if reason to know an Indian child is involved

If tribe intervenes, may send notice as to all other parties

60 day provision (WIC 224.3(e)(3)) R ti if t i f ti

46

Re-notice if get new informationMust apply ICWA if later information confirms Indian child status

Timeline & ICWA Determination

AVOIDING DELAY AND OBSERVING THE LAW

47

Determination Re: ICWATribal & BIA Determination = conclusive

State Court Determination = 60 day provisionOnly if no affirmative response from Tribes or BIAProof of noticeRequires supplemental notice if new information discovered

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Requires supplemental notice if new information discovered


The ICWA TimelineExcept for the detention hearing in a dependency case, you may not proceed with a hearing until 10 days after the tribe receives the notice.

The tribe, parent or Indian custodian is entitled to an additional 20 days to prepare upon request.

49

y p p p q

Proceed as if ICWA applies until you know it does not and you will avoid invalidation, appeals and worse, disrupting a child’s life.

Tribal Jurisdiction

EXCLUSIVE, CONCURRENT, AND TRANSFERS

50

State Court JurisdictionTribes are entitled to intervene at any point in a case

Once tribe intervenes they are a party and have all rights of a party

IMPORTANT: If the child is an Indian child YOU MUST comply with ICWA whether the tribe intervenes or not

51

comply with ICWA whether the tribe intervenes or not.


Tribal InterventionTribe may designate anyone to serve as their representative for the case

May be an attorney (paid by the tribe)Often will not be an attorneyEither way Tribal Representative has the same rights and should

52

Either way Tribal Representative has the same rights and should be given same courtesies as legal counselNew OPTIONAL form ICWA 040

Why don’t tribes intervene right away?

Tribal Exclusive JurisdictionExclusive Jurisdiction:

If Indian child is a ward of the tribal court or resides or is domiciled on a reservation that exercises exclusive jurisdiction, notice must be sent to the tribe by the next working day following removal.

53

If the tribe determines that the child is an Indian child, the child-custody proceeding must be transferred to the tribe within 24 hours after receiving the written determination from the tribe.

Tribal Concurrent JurisdictionPL-280 Federal Law that divested Tribes in CA of exclusivejurisdiction over child custody matters.

Tribes in CA retained concurrent jurisdiction.

Tribes in CA with a court authorized by the tribe to hear child custody matters may initiate proceedings over matters

54

child custody matters may initiate proceedings over matters arising on the reservation.


Transfer to Tribal JurisdictionTransfer: If no exclusive tribal jurisdiction, the tribe, parent, or Indian custodian may petition the court to transfer the proceedings to the tribal jurisdiction.

The court must transfer the proceedings unless there is good cause not to do so.

55

cause not to do so.

Either parent may object to the transfer, or the tribe may decline the transfer of the proceedings.

Evidentiary Requirements

BURDENS OF PROOF AND QUALIFIED EXPERT WITNESSES

56

Evidentiary RequirementsBurden of proof:

Foster care: clear and convincing evidence and testimony of a Qualified Expert Witness (QEW)Termination of parental rights: Beyond a reasonable doubt and QEW testimony

57

y

Cultural evidence: The court must also consider evidence of the prevailing social and cultural standards of the Indian child’s tribe including family organization and child rearing


QEW – WIC 224.6 & 361.7(c)Before the court orders FC, guardianship or TPR, QEWMust testify:

that continued custody by parent or Indian custodian is likely to result in serious emotional or physical damage based on the tribes standards.

58

Can not be an employee of the person or agency seeking the FC placement.

Must be live testimony unless the parties stipulate to a declaration.

Burden on you to secure and pay for the expert testimony.

Qualified Expert WitnessMost likely persons:

A member of the tribeExpert in the delivery of child and family services to Indians and tribal customs A professional with substantial education and expertise in their

59

p pspecialty

The expert witness can be a member of the tribal community with no specialized “education” so long as they are qualified to testify to the risk to the child, if they remain in the home based, on the tribe’s standards – No advanced degree required

Active Efforts

CULTURALLY APPROPRIATE CASE PLANNING

60


Active EffortsThe 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.

61

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.

Work With the TribeTribes may chose not to intervene or to intervene later in the case

You can still work with the tribe

Services may be available directly from the tribe even if they chose not to intervene

62

chose not to intervene.For parentsFor children

Culturally Appropriate Case PlanServices designed for American Indian children and families

Offered by tribes or other agencies

American Indian Specific Services:Health CentersS b t Ab

63

Substance Abuse programsTribal TANFTribal CASA’s


ResourcesThe Central Valley ICWA Task ForceCalifornia Indian Legal Services:

www.calindian.orgICWA Benchguide

CDSS ICWA Specialist:

64

pMaria Enriquez, (916) [email protected] (click on ICWA)

CFCC ICWA Initiative website:http://www.courtinfo.ca.gov/programs/cfcc/programs/description/jrta-IndianChild.htm

Secure Child’s Tribal MembershipTribes 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

65

Work with tribe s child welfare department or membership department or in some cases the tribal council directly to follow process for membership

Placement Preferences

SPECIFIC REQUIREMENTS FOR INDIAN CHILDREN

66


Placement Preferences: Foster Care

Least restrictive Setting that most approximates a family, reasonable proximity to child’s home and considering any special needs.

1) With a member of the child’s extended family

2) With a foster home licensed or approved by the tribe

67

2) With a foster home licensed or approved by the tribe

3) With an Indian foster home licensed or approved by a non-Indian licensing authority

4) With an institution approved by an Indian tribe or operated by an Indian organization

Placement Preferences: Adoption1) With a member of the child’s extended family

2) With other members of the Indian child’s tribe

3) With other Indian families

68

Placement PreferencesThe 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

69

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


TPR Exception 366.26(c)(1)(F)Specific compelling reason not to TPR for Indian Child

Compelling reasons include but are not limited to:TPR would interfere with the child’s relationship with the tribeTribe has identified another planned permanent living arrangement for the child

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arrangement for the child

Thank You!Please complete evaluation before

leaving

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Supplemental Handouts (Attached Separately):

1. ICWA-005-INFO 2. ICWA-020 3. ICWA-030 4. ICWA-030(A) 5. ICWA-040 6. ICWA-050 7. ICWA-060 8. JV-100

Touch here to open Evaluation

Touch here to open the Tablet Survey

https://docs.google.com/spreadsheet/viewform?formkey=dG1LSTdoTEhaQnU0QXV5bzNDc19KOEE6MQ#gid=0

https://docs.google.com/spreadsheet/viewform?formkey=dDFlZW9BX2VoRGk1TWUwOWFjLWxRWFE6MQ#gid=0

Date post:	09-Aug-2020
Category:	Documents
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