Evie Campbell, MSW

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Evie Campbell, MSW
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Objectives

• Understanding the historical context of why ICWA,
  MIFPA and the Tribal State Agreement were
  recreated.
• Understand how ICWA is implemented.
• Understand how to apply ICWA to a case study.

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In the Beginning Historical Account

• Out-of-home placement for American Indian
  children can be traced back to the boarding
  schools (Redhorse et al., 2000). At these
  institutions children were told not to speak
  their language or practice their spirituality and
  were made to change the way they dressed by
  cutting their hair and wearing uniforms. They
  were taught to be ashamed of who they were as
  indigenous people.

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Violations of international human rights laws

• Universal Declaration of Human Rights
• The International Covenant on Civil and Political
  Rights guarantees indigenous groups the right to
  enjoy their own culture, practice their own
  language and use their own language (Roberts,
  2002).
• The Convention of the Rights of the Child
  provides that when the state places children in
  substitute care efforts should be made to
  preserve a childs cultural identity (Roberts,
  2002)
• The United Nations defines genocide as forcibly
  transferring children from one group to another.

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Out-of-home placement

• In 1974 a national survey by the Association on
  American Indian Affairs found that about 25 or
  more of American Indian children were removed
  from their families and placed in foster care,
  group homes, residential schools, other
  institutions or adopted.
• During 1971 and 1972 in Minnesota, one-fourth of
  American Indian children under the age of one had
  been adopted and 90 were in non-Indian homes.

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Current Statistics

• The Minnesota Department of Human Services
  reported in 1998 that overall, minority children
  of African American, American Indian,
  Asian/Pacific Islander or Hispanic race or
  heritage accounted for 39.6 of the children in
  out-of-home placement.
• In six counties in Minnesota, the percentage of
  minority children in out-of-home placement ranged
  from 54.3 to as high as 85.1. Four of the
  counties Cass (54.3), Beltrami (75.6),
  Clearwater (60.5) and Mahnomen (85.1) are on or
  near a Minnesota Indian reservation. Two of the
  counties Hennepin (71.9) and Ramsey (60) are
  urban counties (Minnesota Department of Human
  Services, 1998).
• In Minnesota, 11.1 of the children in
  out-of-home placements in 1998 were American
  Indian, although they only made up 1.8 of the
  states children population (Kuchera, 2001).
  Indian children in Minnesota are placed at an
  earlier age, have more multiple placements and
  serve longer periods of placement (Redhorse et
  al., 2000).

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Legal Implications

• Tribal Sovereignty-tribes have inherent rights
  that were never lost.
• Tribal membership is a political status.
• Self-determination policies gives tribes
  exclusive jurisdiction and decision making power
  over their children

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Minnesota Indian Family Preservation Act (MIFPA)

• The MIFPA was passed in 1987 to strengthen and
  expand parts of ICWA. Minnesota took the federal
  law and made it a state law, whereby, the state
  law imposes higher standards of protection. The
  federal law requires children who are eligible
  for membership to also be the biological child of
  member. The state law differs from the federal
  law by recognizing Indian children as those
  eligible for membership giving tribes the
  authority to define its members (Graves Ebbott,
  2006).

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Tribal State Agreement

• In Minnesota, the Tribal State Agreement was
  intended to address how Indian children should be
  cared for under the requirements of ICWA and the
  MIFPA. The ICWA, authorizes states and tribes to
  form an agreement regarding the care and custody
  of Indian children, and who has jurisdiction over
  these children in child custody proceedings .
  Agreements may also be revoked with notice to the
  other party.
• The main objective of the Agreement is to set up
  procedures for county social workers and others
  to follow the laws (Graves Ebbott, 2006).
• This legislation provided a framework for how to
  best care for American Indian children when they
  are placed in the state child protection system.
  The Agreement created valuable safeguards to aid
  in the cultural considerations of American Indian
  children when they are removed from home and
  placed in the care of the state.

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Best Interest of an Indian Child

• The Tribal State Agreement defines best interest
  of an American Indian child as a sense of
  belonging to a family, extended family, clan and
  tribe.

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American Indian families
clan
tribe elders
community
extended family
parents
Ch ild
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Goals of ICWA

1. Strengthen Indian families.
2. Protect tribal interests.
3. Keep decisions within the Indian Community

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Duties under ICWA

• Identifying ICWA children
• Promoting the rights of parents and tribes
  pursuant ICWA

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Consequences for Non-Compliance of ICWA

• Dismiss the petition and return the child.
• Issues of non-compliance can be reported to the
  Indian Child Welfare Program Consultant at DHS.
• Ombudsperson for Indian Family.
• Malpractice actions against the attorneys.

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ICWA applies when

1. Indian Child
2. Child Custody Proceeding

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Indian Child

• ICWA Definition
• Member of an Indian tribe or Eligible for
  membership
• AND the biological child of a member

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Higher standard definition

• Minnesota Definition
• Member of an Indian tribe or eligible for
  membership. Not enrollment. Enrollment is not
  always required to be a member of a tribe.
• Give example.

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Child Custody Proceeding

• Foster Care Placements
• Preadoptive and adoptive placements
• Status offence disposition placements
• Permanency proceedings
• Termination of parental rights (TPR) customary
  adoptions
• Third party custody actions
• Long term foster care

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Jurisdiction

1. Exclusive Jurisdiction over children who are
   wards of tribal court and
2. Tribal courts have exclusive jurisdiction over
   children who reside or are domiciled on the
   reservation.

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General Rule Exception

• Exception exist for tribes who are subject to
  Public Law 280
• Public Law 280 gives state courts concurrent
  jurisdiction with tribal courts over children
  residing or domiciled on the reservation. In
  Minnesota, all reservations are Public Law 280,
  with the exception of Red Lake Bois Forte.

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Notice must be given to tribes

• Potential of placement
• Emergency removal
• Court jurisdiction

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Notice

• No court hearing until 10 days after
  receipt of the notice.
• And sent by registered mail, return receipt
  requested
• If more than 1 tribe, notice to all tribes.
• If more than 1 tribe responds, tribes will decide.

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Notice continued

• Notice is sent to parents, or Indian custodians,
  and to Indian childs tribe.
• If tribe is unknown, notice is sent to the local
  BIA office.

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Parent

• Biological mother,
• Biological father, married to mother,
• Indian, adoptive parent,
• Unwed father who has established or acknowledged
  paternity. Acknowledgement is ANY ACTION taken
  by a man to hold himself out as the father.

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Indian Custodian

• An Indian person who has legal custody of an
  Indian child by tribal or state court order, or
  someone to whom temporary physical custody has
  been transferred by the parent.
  

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Indian Tribe

• Federally-recognized tribes are recognized as
  eligible for services provided to Indians by
  the United States government.

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Intervention

• The tribe and Indian custodian have an absolute
  right to intervene in the proceeding, at any
  point and tribes have automatic party status.

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Transfer of Jurisdiction to Tribal Court

• Mandated unless
• Parent objects,
• Tribal court declines, or
• Good cause found.

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Three examples of good cause

• Childs tribe does not have a tribal court.
• Parties are forum shopping.
• Undue hardship to the parties, witnesses.

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Transfer of Jurisdiction to Tribal Court

• County remains responsible for placement costs.

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Emergency Non-Emergency Removal of an Indian
Child

• Emergency Removals
• Defined as Necessary to prevent imminent
  physical damage or harm. Emotional abuse alone
  is not enough.
• Within 72 hours, must file a petition in state
  court, transfer the child to the jurisdiction of
  tribal court OR return the child.
• Foster care placement preference is used.

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Non-Emergency Removals If there is not
imminent physical damage or harm, prior to a
childs removal from the home you must give
notice, verify membership, determine jurisdiction
and get input in risk assessment AND
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In a non-emergency removal, you must provide
qualified expert witness testimony that the child
is likely to suffer from serious emotional and
physical damage or harm if left in the care of
the parent, as well as demonstrate that active
efforts were used to prevent the placement and/or
reunify the child with his or her family.
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1.Qualified expert witness is defined in the
Tribal/State Agreement as a member in the childs
tribe or has significant experience with child
tribe and knowledge and understanding of
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• meaning of clan relationships and extend family
• traditional and contemporary child rearing
  practices
• traditional disciplinary measures used
• ceremonial practices
• medicine and traditional healing and
• effect of acculturation or assimilationin
  childs tribe.

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2. Active efforts are different from reasonable
actives and are defined asrigorous and concerted
level of case work that uses prevailing social
and cultural values way of life of Indian tribe
to preserve family, prevent placement and
reunify.
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Non-emergency removals continuedCant do it if
the tribal court has exclusive jurisdiction.
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Foster Care Placement

• Extended family member,
• Home licensed, approved or specified by the
  tribe,
• Indian foster home,
• Institution approved by the tribe or operated by
  an Indian organization

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Adoptive Placement Preferences

• Extended family members,
• Other tribal members,
• Other Indian families.

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Placement preferences continued

• Need good cause to not follow the
  placement preferences.

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Good cause

• A determination of good cause not to follow the
  order of preference set out is the ICWA should be
  limited to a finding by the court of one or more
  of the following considerations
• Request of a parent or a child of sufficient age.
• Extraordinary physical or emotional needs of the
  child.
• Unavailability of suitable families with the
  placement preference order.

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Permanency Proceedings

• Active efforts always required.
• Qualified expert witness testimony required.
• Notice, intervention and transfer of jurisdiction
  provisions apply.
• TPRs must be proven beyond a reasonable doubt.

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Voluntary Foster Placements

• Notice within 7 days
• Signed by judge, written agreement
• Child return on demand

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Voluntary TPRs

• Notice required
• Consent can not given within 10 days of birth
• Can be withdrawn any time before entry of final
  order
• And
• For up to 2 years after entry of final adoption
  decree, adoption may be vacated if the consent
  was obtained through fraud or duress.

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Changes of Placement

• ICWA applies to all changes in placement.
• Parents can petition for return of child if
  adoption is vacated. 25 USC 1916(a)

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Resources
Indian Child Welfare Act, 25 U.S.C. sections 1901
to 1963 ICWA BIA Guidelines for State Courts
Indian Child Custody Proceedings, 44 Fed. Reg.
67,583 (1979) BIA Guidelines Minnesota Indian
Family Preservation Act, Minn. Stat. sections
260.751 to 260.835 MIFPA Minnesota Tribal/State
Indian Child Welfare Agreement (February 22,
2007) TSA Minnesota Dept of Human Services,
Social Services Manual, XIII-3500 to 3687
(September 29, 1998) SSM
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• You have the option of taking the case study
  after this presentation.
• The case study can be found on this weeks agenda
  on the moodle website.
• There is also an a forum set up for comments or
  questions. No grade will be attached to this
  forum. The purpose is to answer questions
  students have after viewing the powerpoint
  presentation.