H.R. 6893 Child Welfare Services for Tribal Children

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					The Indian Child Welfare Act:
      Policy & Practice

    Ashley Horne, Government Affairs Associate

                503-222-4044, ext. 122
Federal Indian Policies at a Glance
 • American history (European immigration,
   colonization, etc.) and federal Indian policy
   (removal, termination, etc.) have impacted
   tribes since initial contact.

 • Review of federal Indian laws and their
   implementation provides a context for
   understanding current socio-economic and
   political challenges — and underscores the
   importance of the Indian Child Welfare Act
Federal Indian Policies at a Glance
 • The Civilization Act of the early 1800s
   intended to “civilize” and “Christianize”
   Indians through federal and private

 • The Indian Removal Act of 1830 was
   enacted to move Indians away from
   traditional homelands to “Indian Territory”
   west of the Mississippi so as to provide
   European immigrants with land and to
   prevent further conflict between colonists
   and tribes.

 • Starting in the 1860s, Indian children
   were removed from their homes and sent
   to military style boarding schools,
   implementing federal policy aimed at
   assimilating Indian children.
Federal Indian Policies at a Glance
 • With the passage of the Dawes Allotment Act of
   1887, Indian land was divided up in an effort to
   turn Indians into nuclear families and farmers. It
   was with this law, that the concept of blood
   quantum (stemming from military’s knowledge of
   horse breeding) was introduced as a concept of
   tribal enrollment.
Federal Indian Policies of the 1900s
  • Initiated in 1959, the Indian Adoption Project (Bureau of Indian
    Affairs and the Child Welfare League of America) and the
    adopting-out of Indian children to Christian non-Native families

  • Public Law 83-280 of 1953 was enacted during the
    termination era in which one hundred and nine tribes were
    “ordered to cease exercising governmental powers and to
    disperse all land and property to tribal members.” Public Law
    280 was an interim step towards the termination of some
    tribes. It provided for states, some as a mandatory matter and
    others at their option, to exercise criminal jurisdiction over all
    AI/AN people living within the state and over “civil causes of
    action” involving AI/AN people residing in the state as well.

  • Relocation program of 1950s and 60s.
Federal Indian Policies of the 1900s
  • In the 1960s, tribes began to question the
    placement rate of their children into non-Native

  • In the 1970s, the Association on American Indian
    Affairs (AAIA), New York, conducted surveys to
    discover the extent of Indian child welfare issues.
     – Studies found 25-35% of all Indian children had been
       removed from their families and placed into non-Native
     – Findings created and expressed national tribal concern,
       leading to action and advocacy.

  • In 1978, Congressed passed the Indian Child
    Welfare Act (ICWA)
ICWA: Congressional Findings
• § 1902. Congressional Findings-
  (3) that there is no resource that is more vital to
  the continued existence and integrity of Indian
  tribes than their children and that the United
  States has a direct interest, as trustee, in
  protecting Indian children who are members of
  or are eligible for membership in an Indian tribe;

  (4) that an alarmingly high percentage of Indian
  families are broken up by the removal, often
  unwarranted, of their children from them by
  non-tribal public and private agencies and that
  an alarmingly high percentage of such children
  are placed in non-Indian foster and adoptive
  homes and institutions; and
ICWA: Congressional Findings
(5) that the States, exercising their recognized
  jurisdiction over Indian child custody
  proceedings through administrative and judicial
  bodies, have often failed to recognize the
  essential tribal relations of Indian people and
  the cultural and social standards prevailing in
  Indian communities and families.
ICWA: Congressional Declaration of Policy

 • § 1902. Congressional declaration of policy-
   The Congress hereby declares that it is the
   policy of this Nation to protect the best interests
   of Indian children and to promote the stability
   and security of Indian tribes and families by the
   establishment of minimum Federal standards
   for the removal of Indian children from their
   families and the placement of such children in
   foster or adoptive homes which will reflect the
   unique values of Indian culture, and by
   providing for assistance to Indian tribes in the
   operation of child and family service programs.
Initial Determinations: Will This Be an ICWA Case?
   •   Is this an Indian child? In order for ICWA to apply,
       the child must be:

        – Unmarried, under 18 years of age; and
        – A member of a federally recognized Indian tribe,
          including an Eskimo, Aleut or other Alaska Native; or
        – A child eligible for membership in a federally
          recognized tribe, including an Eskimo, Aleut or other
          Alaska Native and biological child of a member of an
          Indian tribe.

   •   The WA Tribal-State Agreement extends the
       definition of Indian child to include members of
       tribes recognized by Washington State and
       members of Canadian Native bands.
   •   Inquiry of Indian status must be made by the
       petitioning party if there is reason to believe a child
       is Indian.
   •   A tribe is the only entity that can make a
       determination of membership.
      Proceedings Covered by ICWA

• ICWA covers voluntary
  and involuntary child
  custody proceedings in
  state court:
  – Foster care placements in
    foster homes or
  – Termination of parental
  – Pre-adoptive placements
    in homes or institutions
  – Guardianship placements
  – Adoptive placements
     Proceedings Not Covered by ICWA

•   ICWA does not cover:
    – Situations where the public
      agency is providing services to
      the family, but the child has not
      been removed and is not a ward
      of the state court
    – An award or dispute of custody
      related to divorce proceedings
    – Most juvenile delinquency
          1) Juvenile delinquency proceedings
             where TPR may occur
          2) Status offenses (e.g. drinking,
             runaway, truancy)
             Who Has Jurisdiction?
•   The tribe has exclusive jurisdiction if the child
    resides or is domiciled on tribal lands (tribe
    determines this) or the child is currently a
    ward of a tribal court.

•   P.L. 280 gave states concurrent jurisdiction
    with tribes in some areas.

•   State courts exercise temporary jurisdiction
    over a child who is temporarily living off the

•   If the Indian child is not living on tribal lands,
    the state court must still transfer jurisdiction
    to the tribal court, unless:
      – There is “good cause to the contrary”
      – Tribe or parent(s) object to transfer

•   The Indian tribe, parent, or Indian custodian
    must petition to have the case transferred to
    tribal court.
           ICWA Proceedings
• Child’s tribe, Indian parent, and Indian custodian
  have the right to intervene at any point in child
  custody proceedings.
• State agency/court must send notice, by
  registered mail, to parent, Indian custodian, and
  tribe of pending proceedings.
• No proceeding shall occur until at least 10 days
  after receipt of notice (interveners can request an
  additional 20 days).
• All parties have right to examine all reports or
  documents filed with the court.
• The court must be satisfied that active
  rehabilitative efforts have been made to provide
  remedial services to the Indian family.
  Involuntary Foster Placements
• Under ICWA, no foster placement may
  be ordered without “clear and
  convincing evidence” that “continued
  custody of a child by the parent is likely
  to result in serious emotional or
  physical damage to the child.”
• Active efforts to provide remedial
  services to prevent family breakup must
  have been provided prior to removal
  and after removal to assist reunification.
  Foster Placement Preferences
• Foster placements must follow the
  following order unless there is good
  cause to the contrary.
  – Member of the Indian child’s extended
  – Foster home licensed or approved by
    child’s tribe
  – Indian foster home licensed or approved by
    an authorized licensing authority (state or
  – An institution for children approved by an
    Indian tribe or operated by an Indian
  Termination of Parental Rights
• Termination of parental rights (TPR) not be
  ordered without evidence “beyond a
  reasonable doubt”, including testimony of a
  qualified expert witness, that “continued
  custody of a child by the parent is likely to
  result in serious emotional or physical damage
  to the child.”
• Active efforts to provide remedial services to
  prevent family breakup and assist with
  reunification must have been provided prior to
• Provisions of the Adoption and Safe Families
  Act (ASFA) pertaining to TPR do not modify
  those of ICWA.
Adoptive Placement Preferences
• Preference in placing an Indian
  child for adoption must be given to:
  – A member of the child’s extended
  – Other members of the child’s tribe.
  – Other Indian families.
   Use of Expert Witnesses
• Under ICWA, testimony of qualified
  expert witnesses is required to
  support court’s determination for
  involuntary out-of-home placement.
• A “qualified expert witness” is meant
  to apply to expertise beyond the
  normal social worker and should be
  selected/recognized by the tribe.
    – Tribal members knowledgeable in
      family organization and child rearing
    – Lay experts with experience in Indian
      child and family services
Voluntary Foster and Adoptive Placements
  • Voluntary consent to TPR must be done in writing
    and recorded in presence of a judge.
  • Certification is required that the parent fully
    understood their consent.
  • Any consent for adoption given prior to, or within, 10
    days after birth is not valid.
  • Consent to TPR or adoption may be withdrawn at any
    time for any reason prior to the entry of final adoption
  • Consent to foster care can be withdrawn at any time
    and the child must be returned to the parent.
  • Adoption can be overturned within two years of final
    adoption decree if fraud or duress in obtaining
    consent is proven.
        ICWA and Post-Adoption

• An Indian adoptee who is at least 18 years
  old may, through the court, request their
  adoption records to identify their possible
  tribal affiliation and any rights they may be
  entitled to as an Indian person.
   – It is Important to consider the rights and privileges
     associated with tribal citizenship. These include, but
     are not limited to, the right to vote, hold office, own
     land, conduct traditional functions or assume inherited
     cultural roles, and the right to any applicable
     educational, health, or economic benefits.
ICWA and ASFA: Successful
 Integration and Compliance

 David Simmons, Director of Government Affairs and Advocacy
         Ashley Horne, Government Affairs Associate
  Termination of Parental Rights
ASFA                             ICWA
• TPR must be filed:             • TPR should only occur
  in care 15 of last 22            when legal standards met:
  months (timeline varies),        Evidence beyond a
  child has been abandoned,        reasonable doubt, including
  or serious crimes against        expert witness testimony,
  child have occurred.             continued custody by parent
• Exceptions to TPR:               is likely to result in serious
  relative care, best interests,   harm; and active efforts
  or case plan services not        made.
• Locate adoptive family
  when exceptions do not
          Integration of ASFA and ICWA:
           Termination of Parental Rights
 Indian children may be eligible for
     TPR exceptions (case-by-case
• ICWA preferred placement is
   extended family (in relative
• ICWA legal standards for TPR -
   if not met, grounds to avoiding
   filing (not in best interests).
• Active efforts not provided -
   grounds to avoiding filing (case
   plan services not provided).

• Text of ICWA, federal guidelines, and practice
  help at the National Indian Child Welfare
  Association’s (NICWA) website:
• Comprehensive online guide to implementing
  ICWA at the Native American Rights Fund
  (NARF) website: www.narf.org
• Legal services listings by state:
  – Some states have Indian legal services programs.
• Bureau of Indian Affairs (BIA) Regional Offices
  contact information:

• National Congress of American Indians (NCAI) listing
  of federally-recognized tribes:

• Individuals trying to determine eligibility for tribal
  membership for themselves, a parent or child should
  ask for the tribal child welfare program and/or tribal
  enrollment office. Only Indian tribes can issue
  membership determinations.

• WA Office of Indian Policy:

• WA CA ICW Page and ICW Manual accessible from
  outside the firewall:
   – ICW Page -
   – ICW Manual -

National Indian Child Welfare Association
             Let us put our minds together and
             see what kind of life we can build for
             our children                   -
             Sitting Bull

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