Evie Campbell, MSW

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.

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.

Violations of international human rights lawsUniversal Declaration of Human RightsThe 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 child’s cultural identity (Roberts, 2002)

The United Nations defines genocide as forcibly transferring children from one group to another.

Out-of-home placementIn 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.

Current StatisticsThe 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 state’s 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).

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

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).

Tribal State AgreementIn 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.

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

American Indian families

Ch ildparents

extended familycommunity

clantribe elders

Goals of ICWA

1. Strengthen Indian families.

2. Protect tribal interests.

3. Keep decisions within the Indian Community

Duties under ICWA:

Identifying ICWA childrenPromoting the rights of parents and tribes pursuant ICWA

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.

ICWA applies when:

1. Indian Child

2. Child Custody Proceeding

Indian Child

ICWA Definition:Member of an Indian tribe or Eligible for membership

AND the biological child of a member

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.

Child Custody ProceedingFoster Care PlacementsPreadoptive and adoptive placementsStatus offence disposition placementsPermanency proceedingsTermination of parental rights (TPR) – customary adoptions

Third party custody actionsLong term foster care

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.

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.

Notice must be given to tribes:

Potential of placement

Emergency removal

Court jurisdiction

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.

Notice continued

Notice is sent to parents, or Indian custodians, and to Indian child’s tribe.

If tribe is unknown, notice is sent to the local BIA office.

ParentBiological 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.

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.

Indian Tribe

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

Intervention

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

Transfer of Jurisdiction to Tribal Court

Mandated unless:

•Parent objects,

•Tribal court declines, or

•Good cause found.

Three examples of good cause:Child’s tribe does not have a tribal court.Parties are forum shopping.Undue hardship to the parties, witnesses.

Transfer of Jurisdiction to Tribal Court

County remains responsible for placement costs.

Emergency & Non-Emergency Removal of an Indian ChildEmergency 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.

meaning of clan relationships and extend family;

traditional and contemporary child rearing practices;

traditional disciplinary measures used;ceremonial practices;medicine and traditional healing; andeffect of acculturation or assimilation

in child’s tribe.

Foster Care Placement

1. Extended family member,2. Home licensed, approved or

specified by the tribe,3. Indian foster home,4. Institution approved by the

tribe or operated by an Indian organization

Adoptive Placement Preferences

1. Extended family members,2. Other tribal members,3. Other Indian families.

Placement preferences continued

Need good cause to not follow the placement

preferences.

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:

1.Request of a parent or a child of sufficient age.

2.Extraordinary physical or emotional needs of the child.

3.Unavailability of suitable families with the placement preference order.

Permanency Proceedings

Active efforts always required.Qualified expert witness testimony required.

Notice, intervention and transfer of jurisdiction provisions apply.

TPR’s must be proven beyond a reasonable doubt.

Voluntary Foster Placements

Notice within 7 daysSigned by judge, written agreement

Child return on demand

Voluntary TPR’s

• 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.

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)

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 Dep’t of Human Services, Social Services Manual, XIII-3500 to 3687 (September 29, 1998) [SSM]

Resources:

You have the option of taking the case study after this presentation.

The case study can be found on this week’s 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 student’s have after viewing the powerpoint presentation.