Presented by Hon. Timothy Connors
Circuit Court Judge
Robert G. Carbeck, Trial Court Administrator
Washtenaw County, Michigan
with assistance from
Allie Greenleaf Maldanado
Tribal Attorney for and Member of
Little Traverse Bay Bands of Odawa Indians ,Michigan
 1) Historical Genesis
 2) Application
 3) Compliance and Resources
 Affiliated with State Court Justice Systems
 Interested in Education
 Committed to Following the Law
 Identify = Who?
 Action = What?
 Time = When?
 Location = Where ?
 Process = How?
 Motivation = Why?
 Visualization = Describe
 Sharing = Explain
 Current U.S. Indian Law is Rooted in European
Colonialization Attitudes of Papal Declaration of
“Doctrine of Discovery”
 The U.S. View of Indian Law Arises out of the
Commerce Clause of the Constitution
Article I Section 8 Clause 3: The Congress shall
have power…to regulate commerce with foreign
nations, and among the several states, AND
 The U.S. Supreme Court has Interpreted this Provision
to Give “Plenary Power” to Congress with Respect to
Indian Nations
 The Policies of Congress has Been a Reflection of the
Ever Changing Will of the American Voting Populace
 The “Plenary Power” of Congress has Manifested in
Contradictory Goals :
 Negotiation (Treaties)
 Removal (Reservations)
 Extinction (P.O. W.’ s)
 Assimiliation
 Termination
 Self-Determination
 ICWA is the Product of this Policy of Self-Determination
Why did Congress pass ICWA?
• April 8, 1974 Congress began a series of hearings
regarding Indian child welfare in the United States.
Numerous experts and witnesses from across the country
gave testimony under oath.
• The disturbing facts revealed in those hearings showed
that U.S. Federal and state government's had a wellknown policy of removing Indian children from their
families and tribes in an attempt to assimilate them into
white culture by placing them in white families or
• It became clear that the United States had a crisis of
massive proportions on their hands.
• Official government policy was destroying the fabric of
Indian families and endangering the very existence of
tribal governments.
The National Statistics
Shocked Congressional
“In Montana, the ratio of Indian foster care placement is at
least 13 times greater [than for non-Indian children]. In South
Dakota, 40 percent of all adoptions made by the State…are of
Indian children, yet Indians make up only 7 percent of the
juvenile population. The number of South Dakota Indian
children living in foster homes is per capita nearly 16 times
greater than the non-Indian rate. In the State of Washington,
the Indian adoption rate is 19 times greater and the foster care
rate is 10 times greater.” 95th Congressional Record, Report
No. 1386, *8-9.
Removing Indian Children from their
Families was a Government Policy
“Separating Indian children from their parents and tribes has
been one of the major aims of governmental Indian services
for generations. The assumption is that children and
particularly those in any kind of difficulty would be better off
being raised by someone other than their own parents. The
purpose of the first boarding school on the Navajo
reservation as stated in its charter in the 1890's was "to
remove the Navajo child from the influence of his savage
HEALTH SERVICE, GALLUP, N. MEX., Hearings before the
Subcommittee on Indian Affairs, April 8 and 9, 1974, P128.
Evidence of the Policy Was Overwhelming
In 1886, the Commissioner of Indian Affairs stated,
“It is admitted by most people that the adult savage is not
susceptible to the influence of civilization, and we must
therefore turn to his children, that they might be taught to
abandon the pathway of barbarism and walk with a sure step
along the pleasant highway of Christian civilization....
They must be withdrawn, in tender years, entirely from the
camp and taught to eat, to sleep, to dress, to play, to work,
to think after the manner of the white man.”
What was the Result of the
Government’s Destructive Policy?
Testimony of Mr. William Byler, Executive Director,
Association on American Indian Affairs
“Statistical and anecdotal information show that Indian
children who grow up in non-Indian settings become
spiritual and cultural orphans. They do not entirely fit into
the culture in which they are raised and yearn throughout
their life for the family and tribal culture denied them as
children. Many native children raised in non-Native homes
experience identity problems, drug addiction, alcoholism,
incarceration and, most disturbing, suicide.”
“They had virtually no viable Indian identity. They can recall such
things as seeing cowboys and Indians on TV and feeling that Indians
were a historical figure but were not a viable contemporary social
group. Then during adolescence, they found that society was not to
grant them the white identity that they had. They began to find this
out in a number of ways. For example, a universal experience was that
when they began to date white children, the parents of the white
youngsters were against this, and there were pressures among white
children from the parents not to date these Indian children…The other
experience was derogatory name calling in relation to their racial
identify…They were finding that society was putting on them an
identify they didn’t possess and taking from them an identity that they
did possess.”
FN1 Dr. Joseph Westermeyer, University of Minnesota Psychiatrist
“Culturally, the chances of Indian survival are significantly reduced if
our children, the only real means for the transmission of the tribal
heritage, are to be raised in non-Indian homes and denied exposure to
the ways of their People. Furthermore, these practices seriously
undercut the tribes’ ability to continue as self-governing communities.
Probably in no area is it more important that tribal sovereignty be
respected than in an area as socially and culturally determinative as
family relationships.” 1978 Hearings at 193
FN2 Mr Calvin Isaac, Tribal chief of the Mississippi Band of Choctaw Indians and
Representative of the National Tribal Chairman’s Association.
“Indian Tribes and Indian People are being drained of their children,
and, as a result, their future as a Tribe and a people is being placed in
FN3 U.S. House Rep. Morris Udall
 “One of the most serious failings of the present system
is that Indian children are removed from the custody
of their natural parents by nontribal government
authorities who have no basis for intelligently
evaluating the cultural and social premises underlying
Indian home life and childrearing. Many of the
individuals who decide the fate of our children are at
best ignorant of our cultural values, and at worst
contemptful of the Indian way and convinced that
removal, usually to a non-Indian household or
institution, can only benefit an Indian Child.”
 FN3 Chief Isaac
 One of the particular points of concern was the failure of
non-Indian child welfare workers to understand the role of
the extended family in Indian society. The House Report on
the ICWA noted: “An Indian child may have scores of,
perhaps more than a hundred, relatives who are counted as
close, responsible members of the family. Many social
workers, untutored in the ways of Indian family life or
assuming them to be socially irresponsible, consider
leaving the child with persons outside the nuclear family as
neglect and thus as grounds for terminating parental
FN4 U.S. House Report
 “We’ve had testimony here that in Indian communities
throughout the Nation there is no such thing as an
abandoned child because when a child does have a
need for parents for one reason or another, a relative or
a friend will take that child in. It’s the extended family
FN4 U.S. Senator Aboureck
"(3) that there is no resource that is more vital to the continued
existence and integrity of Indian tribes than their children . . .;
"(4) that an alarmingly high percentage of Indian families are broken
up by the removal, often unwarranted, of their children from them by
nontribal public and private agencies and that an alarmingly high
percentage of such children are placed in non-Indian foster and
adoptive homes and institutions; and
"(5) that the States, exercising their recognized jurisdiction over Indian
child custody proceedings through administrative and judicial bodies,
have often failed to recognize the essential tribal relations of Indian
people [490 U.S. 30, 36] and the cultural and social standards
prevailing in Indian communities and families." 25 U.S.C. 1901.
• Created ICWA’s notice requirements.
• Gave rise to ICWA’s protections for Indian custodians.
• Included heightened removal standards such as the
requirement of testimony from a qualified expert
witness for removal and termination of parental
rights, and the beyond a reasonable doubt standard
for termination of parental rights.
Minimum Federal Standards
ICWA establishes minimum Federal standards for the
removal of Indian children from their families, and the
placement of Indian children in foster or adoptive
homes or institutions that reflect the values of Indian
ICWA Attempts to Fix What Official
Government Policy Broke by Promoting the
Following Goals:
Protect the best interests of Indian children and
families as determined by tribes.
Promote the stability and security of Indian families.
Recognize and strengthen the role of tribal
governments in determining child custody issues.
In other words, compared to pre-ICWA
practices, ICWA purposefully makes it more
difficult for state governments to remove Indian
children from their homes.
 Congress received statistical evidence proving that the
removal of Indian children was a crisis of massive
 Congress heard testimony given under oath
documenting how pre-ICWA abuses tore apart Indian
families with little recourse.
 Congress took responsibility for removal practices that
were born from the government’s official, welldocumented assimilation policy.
 In response to the overwhelming evidence, Congress
passed the Indian Child Welfare Act.
 Every State Court in the United States
 Every Indian Child who is a member of, or Eligible for
membership in 1 of the 565 Federally Recognized
 Who defines membership?
 When Tribe Has Jurisdiction* :
 Tribe has EXCLUSIVE Jurisdiction when
Child Resides or Domiciled Within Reservation
Child Ward of Tribal Court
 Tribe Has CONCURRENT Jurisdiction when
Child not Domiciled on Indian Reservation
 Definition of Domicile
Uniform Definition under Federal, not State Law.
Parents Physical Presence and Intent Defines Domicile of Child
Supra pps. 44-47
*PL 280 States e.g. Minnesota, Wisconsin
 Child Born in Wedlock?
Parents Domicile
 Child Born out of Wedlock?
Mother’s Domicile
 Tribal Ward?
Tribes Domicile
 Conclusion: Domicile Determines Tribe’s Exclusive or
Concurrent Jurisdiction, Not Absence of Jurisdiction
 Non-Federally Recognized Indian Child
 Tribal-State Agreement Voluntarily Granting Jurisdiction
 Limited Emergency Situation for Reservation
 CONCURRENT if Indian Child Not Domiciled on
 The Law Indicates that State Courts are to Give
Deference to Tribal Courts When an Indian Child is
 25 U.S.C. Sec. 1911(c) Mandates the Right to Intervene
in State Court for BOTH the Child’s Custodian AND
the Child’s Tribe
 The Tribe is a Real Party in Interest on Equal Footing
with Biological Parents or Custodian
 25 U.S.C. Sec. 1912 Requires Notification to Child’s
Parents, Custodian and Tribe of Right to Intervene.
This Misconception is the First Source of Non-Compliance
 Is an Attorney Required to Intervene?
 How Accomplished? Written or Oral Motion
 Mandatory Timeline? Law States AT ANY TIME
Intervention Can Occur on Appeal
 Objections? Parties Can Always Object but
OBJECTIONS do not Dictate Result. Objections Do
Not Obviate Rights
 Responsibilities of Intervenor? Same as Any Party
(Participate, Comply with Discovery, Appear,
Withdraw AND Motion for Transfer
 Not All 565 Federally Recognized Tribes Have a Tribal
Court to Transfer to
 Not All 565 Federally Recognized Tribes have
Sufficient Resources to Transfer EVERY Case, Even if
They Have a Tribal Court
 Federal Reimbursement to State Courts is sixty cents
on the dollar. For Tribal Courts it is 15 cents.
 24 U.S.C. Sec. 1911 (b) In any state court proceeding for
the foster care placement of, or termination of parental
rights to, and Indian child not domiciled or residing
within the reservation of the Indian child’s tribe, the
court, in the absence of good cause to the contrary,
shall transfer such proceeding to the jurisdiction of the
tribe, absent objection by either parent, upon the
petition of either parent or the Indian custodian or the
Indian child’s tribe: Provided, that such transfer shall
be subject to declination by the tribal court of such
 When either parent objects to the transfer that is an
absolute bar to transfer;
 If the tribal court declines to take the case that bars
transfer; and
 Finally, a state court can find good cause not to
transfer. Unfortunately, ICWA does not define good
Legislative History on the meaning of “Good Cause” not to
“(t)he subsection is intended to permit a state court to
apply a modified doctrine of forum non conveniens, in
appropriate cases, to insure that the rights of the child as
an Indian, the Indian parents or custodian, and the tribe
are fully protected.” Indian Child Custody Proceedings, 44
Fed. Reg. 67, 584, 67, 591 (Bureau of Indian Affairs Nov.
26, 1979) (guidelines for state courts)(quoting H.R. Rep.
No. 95-1386 at 21 (1978)); Yavapai-Apache Tribe v. Mejia,
906 S.W. 2d 152, 165 (Tex. App. 1995)
A. Good cause not to transfer the proceeding exists if the
Indian child’s tribe does not have a tribal court as
defined by the Act to which the case can be
B. Good cause not to transfer this proceeding may exist if
any of the following circumstances exists:
i. The proceeding was at an advanced stage when the
petition to transfer was received and the petitioner did
not file the petition promptly after receiving notice of
the hearing
 If a Tribe Does Not Intervene or Respond, Does That
Excuse the State Court from Not Following ICWA?
 “Good Cause” not to transfer is not good cause to
ignore ICWA.
This Misconception is the Second Source of Non-Compliance
 Foster Care Placement
 Guardianships
 Termination of Parental Rights
 Adoptions and Pre Adoptive Placement
 Domestic Relations if Placement is with a Non-
Biological Parent
 Juvenile Delinquency if “Status Offense”(If Act Would
be a Crime if Committed by an Adult, ICWA Does Not
 Can also Apply to Some Voluntary Proceedings
 ICWA Intends a Higher Standard For Removal Than Many
State Standards
 HOW is this Higher Standard Enforced?
 25 U.S.C. Sec. 1912 (d) “ACTIVE EFFORTS”:
 To Provide Remedial Services and Rehabilitative Programs Designed
to Prevent the Breakup of the Indian Family and that these Efforts
have Proven Unsuccessful”
 Versus State Reasonable Efforts
 Beyond a Reasonable Doubt Standard for Termination of
Parental Rights
Misconception on this point is the third source of non-compliance
 ICWA Requires Testimony from a Qualified Expert Witness
that the Continued Custody of the Child by the Parent or
Indian Custodian is Likely to Result in Serious Emotional
or Physical Damage to the Child 25 U.S.C. Sec. 1912 (e)
and (f)
 The QEW Must Have Sufficient Knowledge About Tribal
Customs, Tribal Family Organization, Tribal Child Rearing
Practices, Indian Social and Cultural Standards
Misconception on the QEW is a Fourth Source of Non Compliance
 ICWA Has a Different Required Placement Standard:
 A Member of the Child’s Extended Family
 Other Members of the Child’s Tribe
 Other Indian Families, Including Single Parent Families
Misconception on Placement is a Fifth Source of Non Compliance
 Five Areas of Misconception that are Sources for Non-
1. Tribe is a Real Party in Interest on Equal Footing with
Biological parents or Custodian.
Result: Tribe Entitled to Notice and Participation
2. ICWA Still Applies Even if Tribe Does Not Intervene
or Respond
Result: Still Give Notice ; Still Follow Heightened Standards for Removal;
Still Follow Placement Preferences; Still Use Appropriate QEW.
3. Higher Burden of Proof than State Law
Result: Active Efforts vs. State Reasonable Efforts;
Beyond a Reasonable Doubt for Termination of Parental Rights
4. QEW Required Testimony
Result: QEW Must Have Sufficient Knowledge About Tribal
Customs, Tribal Family Organization, Tribal Child Rearing
Practices, Indian Social and Cultural Standards
5. Different Placement Standards Than State Law
Result: Required order of Priority
1. A Member of the Child’s Extended Family
2. Other members of the Child’s tribe
3. Other Indian Families, Including Single Parent Families
 NCJFCJ Suggestions
 Specialty Courts
 Click on the Court Resource Guide option
 Native American Rights Fund
 Carlisle Boarding School Records
 SCAO Court Resource Guide available at:
 NCJFCJ Checklist

ICWA - National Association for Court Management