by Cynthia Price
Legal News
It is difficult to understand why the Indian Child Welfare Act of 1978 was passed into law without understanding the history of what was done to Native American families.
The United States long pursued a policy of removing Native American children from their homes and sending them to boarding schools, without access to their tribes or parents. Native Americans were thought to be savages incapable of raising children, and removal practices lasted long after such misconceptions had been dispelled.
In the introduction to A Practical Guide to the Indian Child Welfare Act by the Native American Rights Fund, the authors state: “From the embryonic days of our Nation, Indian tribes have long struggled against...policies instituted by the United States which sought to destroy tribal cultures by removing Native American children from their tribes and families.” The introduction continues, “Later on, the federal government failed to protect Indian children from misguided and insensitive child welfare practice by state...agencies, which resulted in the unwarranted removal of Indian children from their families and tribes...In the 1960s, the federal government embarked on a new...policy of tribal self-determination... In view of this new policy..., the Indian Child Welfare Act (ICWA) was enacted in 1978.”
Organizers of ICWA training sessions throughout the state, including the State Court Administrative Office (SCAO), are distributing that guide to attendees.
Participants at the free sessions also receive Indian Child Welfare Act of 1978: A Court Resource Guide, which is a brand-new publication from the ICWA Special Committee of the SCAO. To disseminate information in that comprehensive guide, based on convening of the ICWA Special Committee led by Supreme Court Justice Michael F. Cavanagh, is what has led to offering the trainings.
The workshops are aimed at judges, referees, court administrators, attorneys and social service agency, particularly Department of Human Services (DHS) workers. A handful of people from Kent County attended the Aug. 25 session in Mt. Pleasant, but there is another opportunity coming up which may be even more appealing to local legal and social work professionals.
Registration is still open for the final ICWA session at Kalamazoo’s Clarion Hotel Sept. 28. The workshops last all day and include both informational panels and facilitated exercises. Those interested in attending may call Regina Carey at 517-977-0587.
The Mt. Pleasant session, held in the Ziibwing Center across the street from the Soaring Eagle Casino, began with an address by Judge Timothy Connors. A Washtenaw County Circuit Court Judge, Connors served on the ICWA Committee of the SCAO which wrote the court resource guide, as did all of the other presenters that day.
Basically, ICWA says that any “child custody proceeding” involving an Indian Child (which is defined as “any unmarried person who is under age eighteen and is either (a) a member of an Indian bribe, or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe”) requires notification of the tribe, which may intervene at any time in the proceedings. ICWA also requires “active efforts” to maintain the Indian family and, if removal is recommended, a “qualified expert witness” must testify to the necessity of removal.
The standard for removal is much more stringent than in other cases. It is necessary to prove beyond a reasonable doubt that the child is likely to experience “serious emotional or physical damage” if left with the parents or Indian custodian.
ICWA also lists a preferential order for adoption placement. Preference is given to: “1) A member of the child’s extended family” (which is in turn to be defined by the law or custom of the tribe); “2) Other members of the child’s tribe. 3) Other Indian families, including single parent families;” similar preferences exist for foster care placement. Foster care is also defined more broadly in ICWA than in Michigan law.
These preferences can be overridden where other preferences have been established by the tribe — and/or by other courts in notable exceptions such as emergency placements or where the parents have given consent.
Presenters pointed out that the different standards are not based on the ethnic identification of Native Americans, but rather on a recognition of the sovereign nature of Native American Tribes. The 12 federally-recognized tribes in Michigan are considered to be separate nations in their own rights, and the children in question are citizens of those nations. Tribal courts have exclusive jurisdiction where the Indian child is domiciled in Indian Country, and concurrent and presumptive jurisdiction where the child is domiciled elsewhere.
“Active efforts” and “qualified expert witness” have very specific meanings in the Act. Active efforts are contrasted with the “reasonable efforts” otherwise required, and might entail, for example, giving a child’s mother a ride to a job interview and offering her interview skills training as opposed to merely letting her know about an opening.
Qualified expert witnesses must have in-depth tribe-specific knowledge of cultural practices and conditions.
Much time was spent at the Mt. Pleasant session addressing the complex nature of such terms and the need for cultural sensitivity in helping Indian children.
In fact, ICWA’s provisions are full of complexity, and carrying out the mandates fraught with difficulty. One Mt. Pleasant attendee, asked, “What if I keep calling and calling the tribal representative but he or she does not return my call?” Noting that such offices are often tremendously understaffed, a few of the tribal participants called out, “Just keep calling us and leave messages to keep us in the loop.”
Even when ICWA does not mandate contacting the tribes, the guides suggest doing so. One of the presenters said the mantra is, “Notify, notify, notify.”
DHS, which has a large burden in ICWA cases particularly in identifying the Indian child, also has its challenges in staffing. DHS does have an Office of Native American Affairs, which hired Stacey Tadgerson as Director in June 2008. Tadgerson explained that the landscape for DHS was turned upside down by a settlement agreement that year. DHS must reduce caseloads, increase provider education, and focus on prevention. “How we do business changed,” according to Tadgerson.
Enrollment in the workshops has been about half and half legal professionals and social service providers.
Speakers emphasized that Michigan is doing a better-than-average job at complying with ICWA, and noted that several important cases originated in Michigan, including Mississippi Band of Choctaw Indians v. Holyfield and the seminal 1973 case Wisconsin Potowatomies of Hannahville Indian Community v. Houston. The latter established the exclusive jurisdiction noted above and was used by Congress when formulating ICWA.
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