Trainee Participant
Manual on ICWA
Authored by: Christine Williams
Produced by: The Central California Training Academy
California State University, Fresno
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 3 Review Questions..................................................................................................... 16
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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
Chapter 4 Review Questions..................................................................................................... 31
Works Cited ................................................................................................................................... 32
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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.
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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.
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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 posttraumatic 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,
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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
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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
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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.
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1950 =
1,671
1960 =
8,109
1970 = 24,509
Figure 1: US Census statistics for Indians in Los Angeles
County
9
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
Children who attend college
Percent of those enrolled in college who
graduate
Amount spent on text books and supplies
per year per child
18% (of those in Federal Indian Schools)
3%
National
Average
50%
32%
$18.00 (by BIA)
$40.00
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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.
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•
•
•
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 federallyrecognized.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
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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
% 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
Disparity by Ethnicity
California
children and Native American Children are
the only two populations that are overrepresented in the child welfare system in
2.91
California. According to the CWS/CMS
2.11
data for 2008, while .65% of the total
population of children in California is “in
0.65
0.61 0.52
0.17
care” in the child welfare system, 2.11% of
the Native American children in California
Total Black Indian Hispanic White Asian
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
Figure 2: 2008 CWS/CMS Data
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?
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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]
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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-federallyrecognized 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.
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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.
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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 greatgrandparents, 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
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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.
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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 greatgrandparents, 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.
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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.
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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.
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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]
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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
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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.
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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
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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.
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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)]
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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, maria.enriquez@dss.ca.gov
•
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.
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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, nonIndian homes. Check your county statistics online at:
http://cssr.berkeley.edu/ucb_childwelfare/CdssFiles.aspx
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29
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)]
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30
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?
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Works Cited
•
•
•
•
•
•
•
•
•
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•
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•
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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: VailBallou 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.
CCTA |CA Common Core: ICWA | March 2010
32
•
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•
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.
CCTA |CA Common Core: ICWA | March 2010
33
1
(Brave Heart 2004, 7)
(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)
2
CCTA |CA Common Core: ICWA | March 2010
34
52
(Indian Adoption Project 2007)
(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)
53
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35
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.
Central California Training Academy
Indian Child Welfare Act (ICWA)
HISTORY COMPLIANCE AND APPLICATION
HISTORY,
Ours Goals for Today
y To explain the historical basis and purpose of the Indian
Child Welfare Act (ICWA)
y To clarify the essential elements of compliance with the
ICWA
y To help you practically apply these essential elements in an
ICWA case.
2
Historic Background
TRIBES AND ICWA
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Understanding ICWA in CALIFORNIA
HISTORICAL TRAUMA IN THE GOLDEN STATE
4
Historical Trauma
y Maria Yellow Horse Brave Heart, PhD in Clinical Social Work
y Concept of historical trauma and historical unresolved grief
theory
y Defined: “A cumulative emotional and psychological
wounding over the lifespan and across generations,
generations emanating
from massive group trauma experiences.”
5
Missions: The Untold Story
y 1769 Catholic Missionaries establish first of 21 coastal
missions
y Coercive religious, labor camps, where many Natives were
enslaved
y Most if not all missions had one or more outbreak of disease
6
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Gold Discovered 1848
y The Golden State
• “eureka” = “I found it”
• Grizzly Bear
y 100,000 “settlers” came to CA in search of gold
y Lawlessness and mass murder of Indian people by miners
y Death of 100,000 Indians in 2 yrs
y Due to disease and murder
y unprecedented losses
7
War of Extermination
y 1851 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.”
y Many laws passed in CA allowing for indentured servitude of
Indian men women and children.
y Thousands of children taken as slave laborers
y Often parents were killed in order to take children for slavery
8
The 18 Treaties
y 1851-1852: BIA negotiated treaties reserving over 8 million
acres
y The U.S. Senate in closed exec session refused to ratify the
treaties under an injunction of secrecy
y 1905 Secrecy finally lifted
y 1906 Congress funds purchase of 100 “Rancherias”
9
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Relocation Program
y Late 1940’s BIA began relocating Indians from tribes outside
of CA to major urban centers in an effort to assimilate them
y Los Angeles and Bay Area were both relocation centers
y US Census statistics for Indians in Los Angeles County
1970 = 24
24,509
509
1950 = 1,671
1960 = 8,109
1970 = 24,509
10
Early U.S. Indian Child Welfare
BOARDING SCHOOLS, ADOPTIONS & CONGRESS
11
The Indian Problem
y 2 pronged solution
y Removal/reservations
y Civilization
y Goal…
y Assimilation!
A i il ti !
12
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U.S. Government Indian Schools
y 1870 Congress authorized an annual appropriation of
$100,000, “for the support of industrial and other schools
among tribes not otherwise provided for.”
y Run by Missionaries
y “Kill
Kill the Indian save the man
man”
13
Assimilation v. Education
y Language
y Traditional daily life
y Clothes
y Food
y Hair
y Name
y Religion
14
History behind ICWA
y 1957 – Federal Indian Adoption Project
y 395 Native American/Alaksan Native children for adoption by
non-Native Families
y States followed this federal example
y Evidence mounted that these placements were harmful to
Native American children
y U.S. Congress formed a task force to investigate these
practices
y 1976 Congressional Report
y 1977 Congressional hearings held re: ICWA
15
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Congressional Findings
y Nationally:
y Indian children 3 times more likely than non-Indian to be
placed for foster care or adoption
y About 25-35% of Indian children had been removed from
homes and placed in foster homes
homes, adoptive homes
homes, or
institutions
16
Congressional Findings
y In California:
y 8.4 times as many Indian as non-Indian children were in
adoptive homes
y 90 % of these Indian children were in non-Indian homes
y 2.7 times as many Indian children as non-Indian children in
foster care.
y No data on ethnicity of the foster care placements
17
9.00%
Children in Care: CA 1976
8.30%
8.00%
7.00%
6.00%
5.00%
Non-Indian
I di
Indian
3.80%
4.00%
3.00%
2.00%
1.00%
0.40%
0.29%
0.00%
Adoption
Foster Care
18
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Congressional Findings
y Indian children who had been placed in non-Indian adoptive
homes frequently suffered serious adjustment and acceptance
problems
y Conclusion: Legal means were necessary to make sure these
practices were stopped
y 1978 Congress passes the Indian Child Welfare Act
19
WHERE ARE WE NOW?
ICWA IN CALIFORNIA’S JUVENILE DEPENDENCY SYSTEM
20
Indians in CA Today
y 107 Federally Recognized Tribes
y Many unrecognized tribes
y Federal Recognition/acknowledgment = political status
y 2008: 74 Petitions filed with BIA for federal recognition
y Largest
L
t number
b off Indian
I di people
l
y Majority from out of state tribes
21
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Indian Children in CA Today
y Native American children are the 2nd most over-represented
population in the child welfare system
y Majority of out of home placements recorded are not in
compliance with ICWA
22
Disparity by Ethnicity
California 3.5
2.912
3
2.5
% in Care
2.108
2
1.5
1
0.654
0.605
0.5
0.517
0.168
0
Total
Black
Native American
Hispanic
White Asian
2008
ICWA Overview
IC What?
IC-What?
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What is the ICWA?
y Federal law passed in 1978
y Establishes minimum federal standards that must be applied
in state child custody proceedings involving Indian children
y Acknowledges and implements the tribes right to intervene
in state child custody proceedings
y Ensures state courts recognize tribal political status
25
What is SB 678?
y SB 678 pased in 2006 in response to continuing lack of
compliance with ICWA nearly 30 years later
y Implemented ICWA into CA codes
y WIC, Family & Probate
y Judicial Council Rules and Forms in response to legislation
26
Definitions
From ICWA 25 USC 1903
27
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Indian Child
y An unmarried person who is under the age of 18 and is
either:
y A member of a federally-recognized tribe, or
y Eligible for membership in a federally-recognized tribe and is
the biological
g child of a member of a federally-recognized
y
g
tribe
y Enrollment v. Membership
28
Indian Tribe
y Any tribe, band, nation, or other organized group or
community of Indians that has been recognized as eligible for
services provided by the federal government
y Federally Recognized Tribes
y Includes anyy Alaskan native village
g
y WIC 306.6 – discretionary participation for unrecognized
tribes
y Does not include indigenous people/tribes from outside the
U.S. borders
29
Indian Child’s Tribe
y The tribe of which the child is a member or eligible for
membership
y 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))
30
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Extended Family
y Defined by tribal law or custom or in the absence of such law
or custom;
y Person 18 or over who is the child’s:
y Grandparent
y Aunt or uncle
y Brother or sister
y Brother-in-law or sister-in-law
y Niece or nephew
y First or second cousin, or
y Step-parent
31
Indian Custodian
y Any 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
y No written documentation is required
32
Compliance & Application
What do I have to do?
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Minimum Federal Standards &
California State Standards
y Inquiry
y Notice
y Jurisdiction
y Evidentiary requirements
y Qualified Expert Witness
y Active Efforts
y Placement Preferences
34
Applicability
y Foster care placements (voluntary or involuntary):
y Dependency and Delinquency
y Guardianships
y Adoptive placements (voluntary or involuntary)
y TPR;
TPR including
l d step-parent adoption
d
y Custody proceeding where child is not placed with one of the
parents
y Includes all WIC 300 and WIC 600 proceedings, when the
child is at risk of entering foster care.
35
Inquiry
WHO, WHAT AND WHEN TO ASK?
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Inquiry
y The court and the social worker have affirmative and
continuing duty to ask whether the child may be an Indian
child
y And to record this information
y Mandatory Judicial Council Form: ICWA
ICWA-010(A)
010(A) – Indian Child
Inquiry Attachment
y Must be filed with every 300 & 600 Petition
y See Form ICWA-005-INFO – Information Sheet on Indian
Child Inquiry Attachment and Notice of Child Custody
Proceeding for Indian Child
37
Who to ask
y For ALL cases you must ask:
y Child
y Parents or legal guardians
y Indian Custodian (if applicable)
y The dutyy to ask is ongoing
g g and if you
y have anyy reason to know the
child may be an Indian child you must try to determine the child’s
Indian status and get the info for the notice form by:
y Interviewing extended family
y Contacting any possible tribes
y Contacting the BIA
y TIP: Use the ICWA 030 Form as an Inquiry Tool!
38
Indian Identity
y 3 major parts to Native American identity
y Political
y Cultural
y Racial/Ethnic
y ICWA is based on a political status
status, not on race
y You cannot tell if someone is Indian by the way they look
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Initial Filing
y If you cannot locate any parents or relatives…
y File petition, check box on Inquiry Attachment that inquiry has
not yet been made
y You will have to file a new form once inquiry is made and every
time new information about child’s Indian ancestry is
discovered
discovered.
y TIP: Court may require that you use a cover sheet if this attachment is
being filed without the petition
40
Detention Hearing
y If parent(s) attends the hearing the court must order them to
complete and file Form ICWA-020 – Parental Notification of
Indian Status
y If parent(s) does not attend, you must make reasonable
diligence to inform parent(s) that court has ordered them to
complete and file Parental Notification Form
41
Notice
SPECIAL REQUIREMENTS FOR INDIAN CHILDREN
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Notice Basics
y After 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
y Judicial Council Form: ICWA
ICWA-030
030 – Notice of Child
Custody Proceeding for an Indian Child
y Mandatory form
y Remember to attach birth certificate
y Notice must comply with WIC 224.2
43
Reason to Know
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
predominantly Indian community.
3. The child or family has received services or benefits from a
tribe or the government ie: health services.
1.
44
Notice: WIC 224.2
y Sent registered or certified mail return receipt requested
y Remember to file the receipt in the court file
y To tribal chairperson unless another agent designated
y To all tribes of which the child may be a member or eligible
for membership
y BIA, area director and Secretary of the Interior
y Attach the child’s birth certificate if available
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Notice – Forever?
y For every hearing, if reason to know an Indian child is
involved
y If tribe intervenes, may send notice as to all other parties
y 60 day provision (WIC 224.3(e)(3))
y Re-notice
R
ti if gett new information
i f
ti
y Must apply ICWA if later information confirms Indian child
status
46
Timeline & ICWA Determination
AVOIDING DELAY AND OBSERVING THE LAW
47
Determination Re: ICWA
y Tribal & BIA Determination = conclusive
y State Court Determination = 60 day provision
y Only if no affirmative response from Tribes or BIA
y Proof of notice
y Requires supplemental notice if new information discovered
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The ICWA Timeline
y Except for the detention hearing in a dependency case, you
may not proceed with a hearing until 10 days after the tribe
receives the notice.
y The tribe, parent or Indian custodian is entitled to an additional
y to prepare
p p upon
p request.
q
20 days
y Proceed as if ICWA applies until you know it does not and
you will avoid invalidation, appeals and worse, disrupting a
child’s life.
49
Tribal Jurisdiction
EXCLUSIVE, CONCURRENT, AND TRANSFERS
50
State Court Jurisdiction
y Tribes are entitled to intervene at any point in a case
y Once tribe intervenes they are a party and have all rights of a
party
y IMPORTANT: If the child is an Indian child YOU MUST
comply with ICWA whether the tribe intervenes or not.
not
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Tribal Intervention
y Tribe may designate anyone to serve as their representative
for the case
y May be an attorney (paid by the tribe)
y Often will not be an attorney
y Either way Tribal Representative has the same rights and should
be given same courtesies as legal counsel
y New OPTIONAL form ICWA 040
y Why don’t tribes intervene right away?
52
Tribal Exclusive Jurisdiction
y Exclusive Jurisdiction:
y 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.
y 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.
53
Tribal Concurrent Jurisdiction
y PL-280 Federal Law that divested Tribes in CA of exclusive
jurisdiction over child custody matters.
y Tribes in CA retained concurrent jurisdiction.
y Tribes in CA with a court authorized by the tribe to hear
child custody matters may initiate proceedings over matters
arising on the reservation.
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Transfer to Tribal Jurisdiction
y Transfer: If no exclusive tribal jurisdiction, the tribe, parent,
or Indian custodian may petition the court to transfer the
proceedings to the tribal jurisdiction.
y The court must transfer the proceedings unless there is good
cause not to do so.
y Either parent may object to the transfer, or the tribe may
decline the transfer of the proceedings.
55
Evidentiary Requirements
BURDENS OF PROOF AND QUALIFIED EXPERT WITNESSES
56
Evidentiary Requirements
y Burden of proof:
y Foster care: clear and convincing evidence and testimony of a
Qualified Expert Witness (QEW)
y Termination of parental rights: Beyond a reasonable doubt and
QEW testimonyy
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
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QEW – WIC 224.6 & 361.7(c)
y Before the court orders FC, guardianship or TPR, QEW
Must testify:
y that continued custody by parent or Indian custodian is likely to
result in serious emotional or physical damage based on the
tribes standards.
y Can not be an employee of the person or agency seeking the
FC placement.
y Must be live testimony unless the parties stipulate to a
declaration.
y Burden on you to secure and pay for the expert testimony.
58
Qualified Expert Witness
y Most likely persons:
y A member of the tribe
y Expert in the delivery of child and family services to Indians
and tribal customs
yAp
professional with substantial education and expertise
p
in their
specialty
y 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
59
Active Efforts
CULTURALLY APPROPRIATE CASE PLANNING
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Active Efforts
y The social worker must make active efforts to provide
services and programs designed to prevent the breakup of the
Indian family.
y The services should be appropriate to the prevailing social
and cultural values and way of life of the Indian child
child’ss tribe.
y The case plan must incorporate extended family, the tribe,
Indian social service agencies, and individual Indian
caregivers.
61
Work With the Tribe
y Tribes may chose not to intervene or to intervene later in the
case
y You can still work with the tribe
y Services may be available directly from the tribe even if they
chose not to intervene.
intervene
y For parents
y For children
62
Culturally Appropriate Case Plan
y Services designed for American Indian children and families
y Offered by tribes or other agencies
y American Indian Specific Services:
y Health Centers
y Substance
S bt
Abuse
Ab programs
y Tribal TANF
y Tribal CASA’s
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Resources
y The Central Valley ICWA Task Force
y California Indian Legal Services:
y www.calindian.org
y ICWA Benchguide
y CDSS ICWA Specialist:
p
y Maria Enriquez, (916) 651-6031
y maria.enriquez@dss.ca.gov
y www.childsworld.ca.gov (click on ICWA)
y CFCC ICWA Initiative website:
y http://www.courtinfo.ca.gov/programs/cfcc/programs/descr
iption/jrta-IndianChild.htm
64
Secure Child’s Tribal Membership
y Tribes have the exclusive right to determine their
membership
y Membership requirements vary from tribe to tribe and are
subject to change
y Work with tribe’s
tribe s child welfare department or membership
department or in some cases the tribal council directly to
follow process for membership
65
Placement Preferences
SPECIFIC REQUIREMENTS FOR INDIAN CHILDREN
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Placement Preferences:
Foster Care
y
1)
2)
3)
4)
Least restrictive Setting that most approximates a family,
reasonable proximity to child’s home and considering any
special needs.
With a member of the child’s extended family
With a foster home licensed or approved by the tribe
With an Indian foster home licensed or approved by a nonIndian licensing authority
With an institution approved by an Indian tribe or operated
by an Indian organization
67
Placement Preferences: Adoption
With a member of the child’s extended family
With other members of the Indian child’s tribe
3) With other Indian families
1)
2)
68
Placement Preferences
y The tribe may establish a different preference order by
resolution
y 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
ceremonial events of the child’s tribe
y Must follow preferences unless court determines that there is
good cause not to
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TPR Exception 366.26(c)(1)(F)
y Specific compelling reason not to TPR for Indian Child
y Compelling reasons include but are not limited to:
y TPR would interfere with the child’s relationship with the tribe
y Tribe has identified another planned permanent living
arrangement for the child
70
Thank You!
Please complete evaluation before
leaving
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24
Supplemental Handouts (Attached Separately):
1.
2.
3.
4.
5.
6.
7.
8.
ICWA-005-INFO
ICWA-020
ICWA-030
ICWA-030(A)
ICWA-040
ICWA-050
ICWA-060
JV-100
Touch here to open Evaluation
Touch here to open the Tablet Survey