THE INDIAN CHILD
WELFARE ACT
Florida Practice and Policy
with
Guidelines for Best Practice
Department of Children and Families
Office of Child Welfare
Why “ICWA”?
Knowledge of the Indian Child Welfare Act is essential for
Child Welfare
Legal and Judiciary
Mental Health
Foster Care and Adoptions
Caregivers
2
Training Session Format
This training is a 3.0 hour session.
There will be one 15 minute break after
the first 1.5 hours.
This curriculum has been approved by
the Florida Bar for 3.5 hours of
Continuing Legal Credits.
3
OBJECTIVES
Participants will:
•
•
•
•
•
•
•
•
Be able to discuss the unique relationship between the federal
government and the Indian Nations and to explain the concept of
tribal sovereignty
Define two key terms: cultural assimilation vs. forced cultural
assimilation and displacement
Have a working knowledge of the essential mandates and
protections of the Indian Child Welfare Act
Learn the historic basis for the Indian Child Welfare Act
Develop the ability to apply the spirit and intent of the Act to child
welfare practice in the field
Display improved competency in casework and field practice with
American Indian/Alaskan Native cultures
Become familiar with information regarding the two federally
recognized Florida tribes and with ICWA practice and policy
specific to Florida
Develop an awareness of American Indian/Alaskan Native
population statistics
4
“...that there is no greater resource that is more vital
to the continued existence and integrity of Indian
tribes than their children…”
The Congress hereby declares that it is the policy of this Nation to
protect the best interest of Indian children and to promote the security
and stability of Indian tribes and families by the establishment of
minimum Federal standards for the removal of Indian children
from their families…
5
Indian Child Welfare Act
November 8, 1978
What guides our ICWA work in Florida?
– Section 39.012, Florida Statute, (rule making authority)
– State-to-nation agreements with Florida tribes
– Section 65C-28.013, Florida Administrative Code
– Core training for all child welfare and legal staff (in pre-service)
– Ongoing in-service technical assistance opportunities
– Electronic systems that track ICWA data for federal and other
reporting (Florida Safe Families Network)
6
Federal Law Related to Indian
Nations
A unique body of federal legislation that specifically addresses
issues relating to American Indian tribes and defines
jurisdictional and other issues on such topics as:
• Criminal law
• Natural resources, i.e., land, water, hunting, fishing, mining
rights
• Child welfare and other social welfare issues
• Gaming
This legislation is based upon the unique political relationship
that exists between the Congress of the United States and the
Indian Nations and it continues to be influenced and re-shaped
by Supreme Court decisions that interpret the concept of tribal
sovereignty.
7
The Foundations of Federal
Law Relating to Tribes and the Indian
Child Welfare Act
• “Indian tribes are sovereign entities whose existences predate the
ratification of the U. S. Constitution. The Supreme Court long ago
recognized tribes as ‘domestic dependent nations’ with a unique
relationship to the federal government.”
• “Indian nations have long been recognized as retaining the inherent
authority to regulate domestic relations among their members.”
• “…ICWA is simply a realization and a codification of the legal
landscape that existed before its passage.”
-The Indian Child Welfare Act Handbook
8
“SOVEREIGNTY” DEFINED:
The supreme, absolute, and uncontrollable power by which any
independent state is governed; supreme political authority; paramount
control of the constitution and frame of government and its
administration; the self-sufficient source of political power, from which
all specific political powers are derived, the international
independence of a state, combined with the right and power of
regulating its internal affairs without foreign dictation; also a political
society, or state, which is sovereign and independent..
-Black’s Law Dictionary
9
Defining American Indian Tribal Sovereignty
and Congressional Jurisdiction over Indian
Nations
 The Commerce Clause of the U.S. Constitution (Article I, Section 8,
Clause 3) is the primary source of federal authority regarding Indian
tribes and has been the vehicle used by Congress to recognize and
define tribal sovereignty. In addition, the Supreme Court has ruled
that Congress, as the legislative body of the nation, has an intrinsic
power to conduct business with and enact legislation concerning the
Indian Nations that reside within the borders of the United States.*
 “The Congress shall have Power…To regulate Commerce with
foreign Nations, and among the several States, and with the Indian
Tribes;”
-U.S. Constitution
10
The Two Theories of Tribal Sovereignty
 The [Indian Nations] have inherent sovereignty that predates the
“discovery” of the Americas.
 The [Indian Nations] have only those attributes of sovereignty that
Congress bestows upon them.
Historically, the Supreme Court has relied on these two views in
defining tribal sovereignty cases*
*Philip J. Prygoski
From Marshall to Marshall: The Supreme Court’s changing stance on tribal sovereignty
http://www.abanet.org/genpractice/compleat/f95marshall.html
11
The “Marshall Trilogy”:
Named for Chief Justice John Marshall, these Supreme Court
decisions further defined the doctrinal basis for interpreting Federal
Indian Law and the concept of tribal sovereignty.
•
Johnson v. McIntosh (21 U.S. (8 Wheat.) 543 (1823)): Tribes cannot
convey lands to private parties without the consent of the federal
government. Origins of the “trust” doctrine and the authority of the federal
government and Congress over Indian nations.
•
Cherokee Nation v. Georgia (30 U.S. (5 Pet.) 1 (1831)): Established tribes
as “domestic dependent nations”, not foreign nations, and established
the “trust relationship” between tribes and the federal government. Tribes
are “nations within a nation” under the protection of the United States.
The guardian/ward relationship is established. This decision found that the
Cherokee were not entitled to bring suit as a foreign nation or as a state.
•
Worcester v. Georgia (31 U.S. (6 Pet.) 515 (1832)): Affirmed the federal
government's exclusive right to treat “the Indian nations…as distinct,
independent, political communities” outside the reach of the states.
The case involved a missionary (Worcester) to the Cherokees who failed to
obtain a license as required by a Georgia statute. The Supreme Court
ruled that, since the Cherokees must be regarded as an independent
nation, the Georgia law violated the Commerce Clause of the
Constitution.
12
Principles of Federal Law and the Indian
Child Welfare Act
•
“Even before the enactment of ICWA, the courts had acknowledged that
Indian tribes, not the states, could regulate marriage among tribal
members; adoption of Native American children; divorce and property
distribution among Native Americans, and the rights and privileges of
children.”
•
“…as a general principle, states are preempted from exercising any
authority over Indian tribes if that exercise of authority clashes with
federal authority.”
- B.J. Jones
The Indian Child Welfare Act Handbook
13
North American History and the Social
and Political Framing of ICWA
• The Indian Child Welfare Act is, in part, a response to hundreds of
years of political and social policy that resulted in the decimation of
the American Indian people and their culture.
• Repeated efforts and policies of forced cultural assimilation,
displacement, and the unwarranted removal of Indian children
from their families by states, prompted Congress to enact legislation
that would establish minimum federal standards for the removal
of American Indian children from their families.
14
U.S. Department of the Interior
The Bureau of Indian Affairs
• The “BIA” was created in 1824 as a part of the U.S. War Department
and transferred in 1849 to the Department of the Interior. It is
responsible for overseeing the protection of American Indians and
acts as a trustee over American Indian lands and funds, promotes
agricultural and economic development, provides health, education
and social services programs, and reclamation projects.
• There are 12 regional BIA offices in the United States.
• Florida is in the Eastern BIA Region.
• Our BIA Regional Office is located at:
545 Marriott Drive, Suite 700, Nashville, Tennessee 37214
Telephone: 615-564-6740
Fax: 615-564-6547
• Our current BIA liaison is Gloria York, MSW.
15
AMERICAN INDIAN POLICY
AND ICWA
16
THE COLONIAL PERIOD
1492 - 1776
•
“Discovery of the New World”
–
–
–
–
•
Conquest of the Americas by Spain, France, England
Objectives include military power and domination, acquisition of
wealth and territory, religious conversion
Results are domination, subjugation, enslavement and removal of
existing inhabitants
Indigenous people later are regarded as independent “nations” and
negotiated with European powers by treaty
Effects of European colonialism on indigenous people
–
–
Loss of natural resources, cultural erosion and forced assimilation
Decimation of indigenous populations through war, exploitation and
disease
• from over 5 million in 1492 to 237,000 in 1900, back to over 2
million in 2000
17
Displacement and Assimilation
The Dismantling of a People
The most effective way to divest a nation and a people of their
sense of unity, of a common purpose, and of their unique,
historical connections, is to strip them of their culture, to
destroy their collective identity, and to compromise and
disengage their family and community systems.
•
Historic Precedents: The Scottish Uprising of 1745 and the English Act of
Proscription: After the Battle of Culloden (1746), Scots are forbidden
(outlawed) by the English to play bagpipes, wear kilts or tartan plaids, or to
speak Gaelic. There is an effort to dismantle the Highland clan system, and
any attributes of Highland culture are stripped to discourage future
rebellion and to promote assimilation to the English culture and
subjugation to English rule, to remove the will to resist. The ultimate
goal was to destroy any sense of Scottish nationalism or unity, and to end the
Scots’ will to continue the fight for independence (forced cultural
assimilation).
•
The “Clearances” forcibly removed Scottish clans from ancestral lands
(displacement).
18
From The Act of Proscription, August 1,
1746:
• "That from and after the first day of August, One thousand, seven
hundred and forty-seven, no man or boy within that part of Britain
called Scotland, other than such as shall be employed as Officers
and Soldiers in His Majesty's Forces, shall, on any pretext whatever,
wear or put on the clothes commonly called Highland clothes (that is
to say) the Plaid, Philabeg, or little Kilt, Trowse, Shoulder-belts, or
any part whatever of what peculiarly belongs to the Highland Garb;
and that no tartan or party-coloured plaid of stuff shall be used for
Great Coats or upper coats, and if any such person shall presume
after the said first day of August, to wear or put on the aforesaid
garment or any part of them, every such person so offending….shall
be liable to be transported to any of His Majesty's plantations beyond
the seas, there to remain for the space of seven years. "
19
From The Act of Proscription, August 1,
1746:
• "That from and after the first day of August, One thousand, seven
hundred and forty-seven, no man or boy within that part of Britain
called Scotland, other than such as shall be employed as Officers
and Soldiers in His Majesty's Forces, shall, on any pretext whatever,
wear or put on the clothes commonly called Highland clothes (that is
to say) the Plaid, Philabeg, or little Kilt, Trowse, Shoulder-belts, or
any part whatever of what peculiarly belongs to the Highland Garb;
and that no tartan or party-coloured plaid of stuff shall be used for
Great Coats or upper coats, and if any such person shall presume
after the said first day of August, to wear or put on the aforesaid
garment or any part of them, every such person so offending….shall
be liable to be transported to any of His Majesty's plantations beyond
the seas, there to remain for the space of seven years. "
20
THE INDIAN REMOVAL PERIOD
1776- 1830
PRESIDENT ANDREW JACKSON, 2nd Annual Address to Congress,
1830.
“[Removal] will separate the Indians from immediate contact with
settlements of whites; free them from the power of the States; enable
them to pursue happiness in their own way and under their own rude
institutions; will retard the progress of decay, which is lessening their
numbers, and perhaps cause them gradually, under the protection of
the Government and through the influence of good counsels, to cast
off their savage habits and become an interesting, civilized, and
Christian community.”
21
THE REMOVAL PERIOD
continued:
•
Indian Removal Act of 1830 – Jacksonian Policy
•
Federal policy moved tribes westward to make room for expansion of
European settlement on the eastern seaboard, reservations established;
•
The “Trail of Tears”: Southeastern tribes forcibly moved to the Oklahoma
Territory west of the Mississippi River and former Indian lands in the east
are redistributed to European settlers via land lotteries.
•
Tribes “relocated” to Oklahoma by the Removal Act of 1830 include the
Cherokee, Chickasaw, Choctaw, Creek, and Seminole.
•
A small group of Cherokee remained in the Smoky Mountains and a similar
group of Seminole remained in the Everglades. 4000 Cherokee died on the
way to Oklahoma from disease, starvation and exposure.
22
“MANIFEST DESTINY”
RESERVATIONS AND TREATIES
1831- 1880
•
•
•
•
•
•
•
•
1840’s saw more continental expansion westward; tribes again displaced
War with Mexico; growing conflicts with western Indian Nations
More reservations created, moved and restructured; treaty violations
Continued “removal’ of indigenous people from their ancestral lands; constant
displacement and friction with new settlers and the military
Inability of tribes to survive without game because the continued
encroachment of settlers impacted hunting and fishing lands; tribes were
“hunter/gatherers”; starvation and inability to sustain their families
The loss of natural resources that ensured survival of the tribes brought
hunger and starvation, loss of shelter and the traditional means of providing
for their families; reservations were impoverished and disease ridden
Military actions against the tribes developed causing confinement to
reservations, imprisonment, transfer of Indian prisoners to prisons in the east,
including Florida (Fort Marion and similar forts/prisons)
No treaties after 1871
23
ASSIMILATION AND
INSTITUTIONALIZATION
1840 - 1980
Mission Schools
•
• Boarding Schools
– Fort Marion, Florida
– Carlisle Indian
School
• Assimilation Policy
• Forced displacement
– Destruction of
longhouses
• Families separated by
adoption policies and
programs (American
Indian Adoption Project)
24
Captain Richard Henry Pratt’s “Experiment”
Prisoners at Fort Marion, Castillo de San Marcos, St.
Augustine, Florida, with Captain Pratt
March/April 1878
25
The Assimilation Policy
Why take the children?
“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 how
to abandon the pathway of barbarism and walk with a sure
step along the pleasant highway of Christian civilization ....
They must be withdrawn, in their tender years, entirely from
the camp and taught to eat, to sleep, to dress, to play, to
work and to think after the manner of the white man.”
- Commissioner of Indian Affairs Annual Report, H.R. Exec. Doc.
No. 50-1, at XIX (1888).
26
MISSION AND BOARDING
SCHOOLS
Tulalip Reservation, Washington
Tulalip Mission School students
with the school ‘s
founder, Father Chirouse
Circa 1865
Tulalip School founded 1857
27
A group of Sioux children upon arrival at Carlisle Indian Industrial School,
photographed October 5, 1879. Captain Pratt is on the far left.
-National Archives and Records Administration
28
Before and after…
Three Pueblo children from San Felipe, New Mexico upon arrival at Carlisle Indian Industrial
school, and afterward. They are Sheldon Jackson (Watte), John Shields (Krise-te-wa) and
Harvey Townsend (Hem-ri-ti)
-National Archives and Records Administration
29
Student body at Carlisle Indian Industrial School, Pennsylvania circa 1905.
-National Archives and Records Administration
30
Bureau of Indian Affairs
Indian Boarding Schools
“In 1971, 17 percent of Native American school-age children were
removed from their homes to attend Bureau of Indian Affairs (BIA)
boarding schools, where they were oftentimes isolated from their
native families and instructed by teachers who had very little
understanding and appreciation of the children’s native languages
and traditions. In many of these boarding schools children were
punished for speaking their native languages or practicing their
religious beliefs.”
-B. J. Jones
The Indian Child Welfare Act Handbook
31
Chilocco Indian School
Oklahoma
1882 - 1980
32
THE ALLOTMENT ERA
1880 - 1930
1887 - The General Allotment Act (“The Dawes Act”)
 Focused specifically on breaking up reservations by granting land
allotments to individual Native Americans.
 The reasoning was that if a person adopted non-Indian clothing and
ways, and was responsible for a farm, assimilation of American
Indians into the dominant population would be enhanced and tribes
would become self supporting on the reservations.
33
THE ALLOTTMENT ERA, continued
• Tribal members were registered and documented on tribal rolls
(called “base rolls”) and registered with the Bureau of Indian Affairs
(sometimes referred to as “Dawes Rolls") in order to establish
eligibility for land allotments.
• Tribal lands were often mountainous or desert and not able to
be used for agricultural purposes.
• The government sold “surplus” Indian lands to non-Indians in
violation of earlier treaties that held reservations in “trust” to Indians
only.
34
THE INDIAN REORGANIZATION ACT
1930 - 1950
1934 - The “Wheeler-Howard Act”
– Attempt by the federal government to secure new rights for
American Indians on reservations.
– Main provisions were to restore to management of tribal
assets (mostly land); to prevent further depletion of reservation
resources; to build a sound economic foundation for the people of
the reservations; and to return local self-government on a tribal
basis. Tribal Councils were established. Many tribes now
have a Tribal Council and a Tribal Council Chairman rather
than the traditional tribal “chief”.
35
NATIVE AMERICAN TERMINATION ERA
1950 - 1970
• U.S. policy toward American Indians during the 1950s and 1960s.
• Commissioner of Indian Affairs John Collier's policy of cultural
pluralism and the ‘Indian New Deal” (1934-1945), resulted in
legislation that sought to "emancipate the Indian" by terminating all
federal ties and benefits to Indian communities and withdrawing
federal support for tribal governments.
• 1953 - statutes called for the preparation of a final roll of tribal
members, the distribution of tribal assets to members, and the
removal of Indian lands from federally protected trust status.
36
SELF DETERMINATION
1970 to present
•
By the 1950’s, the tribes had lost 50 percent of their children.
•
The Child Welfare League of America (CWLA) through the Indian Adoption
Project (1958 – 1967), implemented a national project that removed children from
Indian families for adoption by non-Indians. The CWLA later issued a public
apology for their actions.
•
The Civil Rights Movement of the 1960’s initiated a climate of social and political
change nationally.
•
The Indian Child Welfare Act drafting and hearings take place 1972-1976, and
ICWA passes in 1978.
37
The Survival of a Culture and a
People
“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 nonIndian 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.“
Mr. Calvin Isaac, Tribal Chief of the Mississippi Band of
Choctaw Indians and representative of the National
Tribal Chairmen's Association (1978 Hearings)
38
Understanding
and Respecting
History and
Tradition in
Work with
American Indian
Tribes
39
Tribes are highly unique in their histories, traditions and cultural practices;
however, some general statements can be made with regard to practices and
viewpoints held in common by the America Indian
population:
•
•
•
•
•
•
•
•
•
•
•
•
•
Historic distrust of non-Indians and the dominant culture
Life view is cyclical as opposed to linear, in keeping with nature, time is fluid
Holistic view of life, problems viewed as related to an overall lack of harmony
Spirituality, ancestors involved in their lives, reverence for sacredness of nature,
places, the environment
Importance of the group above the individual, is seen as necessary to survival, and
abhor turmoil or lack of harmony in the group as it threatens the survival of the group
Value age and wisdom (Elders) more than youth, appearance, the transitory
Respect, avoiding the appearance of being aggressive, interfering or meddlesome
Tribal clan systems involve the concept of “extended family”, a child is the
responsibility of the tribe and the elders, the tribe is extended family.
Elders and extended family often assume responsibility for child rearing based upon
traditional tribal systems
Child rearing practices involve “story-telling” and non-corporal forms of discipline
Pride, reluctance to ask for help or to ask questions
Importance of protocol in social interaction, hospitality, sharing of resources
Women and children are honored and many tribes are matriarchal
40
The Indian Child Welfare Act
1901. Congressional Findings
• Establishes jurisdiction and the intent of the Act
• Defines and explains the unique relationship between tribes
and Congress
• Describes the United States as a “trustee” in protecting
Indian children
• Addresses the jurisdiction of the States with regard to tribes
41
1902. Declaration of Policy
Statement that it is the policy of this Nation to protect Indian
children and to promote the stability and security of American
Indian families by:
– Establishes minimum Federal standards for removal of Indian
children from their families;
– Establishes Federal standards for the placement of Indian
children in culturally appropriate foster or adoptive homes
and;
– Provides assistance to the tribes for the operation of family
services programs
42
1903.
Definitions
Key definitions include:
TYPES OF CHILD CUSTODY PROCEEDINGS TO WHICH
ICWA APPLIES:
– Foster care
• Any out-of-home care placement including relatives and
non-relatives when the parent cannot have a child
returned upon demand (shelter)
– Termination of Parental Rights
– Pre-adoptive placement
– Adoption
43
Definitions continued
EXTENDED FAMILY MEMBER:
shall be as defined by the law or custom of the Indian child’s tribe or,
in the absence of such law or custom, shall be a person who has
reached the age of eighteen and who is the Indian child’s
grandparent, aunt or uncle, brother or sister, brother-in-law or sisterin-law, niece or nephew, first or second cousin, or stepparent
Note: Some tribes do not have, for example, a word or concept for
“cousin”. The tribe itself is the extended family or children are
placed within certain subgroups (clans) within the tribe. There
are, in addition, important differences in child rearing in a
matriarchal system.
44
Definitions continued
INDIAN CHILD:
Any unmarried person under the age of eighteen who 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
* Tribal membership can only be determined by the tribe in which
membership is claimed, and their decision is conclusive.
45
Definitions continued
INDIAN CUSTODIAN:
means any Indian person who has legal custody of an Indian child
under tribal law or custom or under State law or to whom temporary
physical care, custody, and control has been transferred by the
parent of such child;
46
Definitions continued
INDIAN TRIBE:
• Any Indian tribe, band, nation or other organized group or
community of Indians recognized as eligible for the services
provided to Indians by the Secretary [of the Interior] because of their
status as Indians.
• Any Alaska Native Village as defined in 3 (c) of the Alaska Native
Claims Settlement Act (85 Stat. 688,689), as amended
• Eligible Tribes and Villages are published annually in The Federal
Register.
• ICWA is not applicable to Native Hawaiians, Canadian “bands”, or
Central or South American tribes, including Mexican tribes, nor to
state-only recognized tribes, private tribal corporations or informal
tribal groups not formally recognized by the Department of the
Interior.
47
Definitions continued
PARENT:
Any biological parent or parents of an Indian child or any Indian person
who has lawfully adopted an Indian child, including adoptions under
tribal law or custom
Unwed fathers where paternity has not been acknowledged or
established are excluded
48
Definitions, continued
TRIBAL COURT:
A court with jurisdiction over child custody proceedings and that is
either a Court of Indian Offenses, a court established and operated
under the code or custom of an Indian tribe, or any other
administrative body of a tribe vested with authority over child
custody proceedings.
49
Subchapter I – Child Custody
Proceedings
1911. Jurisdiction
a)
b)
c)
d)
Exclusive jurisdiction of tribes over states (on reservation)
Transfer of judicial proceedings to the tribe by the state (off
reservation) and declination by tribal court.
State court proceedings and tribe’s or Indian custodian’s right to
intervene at any time in the proceeding
Full faith and credit to public acts, records, and judicial proceedings
of Indian tribes by the states and the federal government
50
1911 (c) State court
proceedings; intervention
In any State court proceeding for the foster care placement of,
or termination of parental rights to, an Indian child, the Indian
custodian of the child and the child’s tribe shall have a right
to intervene at any point in the proceeding.
51
Child Custody Proceedings
1912. Pending Court Proceedings
a)
b)
c)
d)
e)
f)
Notice of proceedings and right to intervene must be by registered mail
return receipt; must wait 10 days after receipt to proceed and additional 20
days can be requested; if the identity or location of the parents, the tribe or
Indian custodian cannot be determined, notice is sent to the Secretary of the
Interior who has 15 days to respond
Appointment of counsel in indigency cases, and can also have counsel for
the child
Right to examination of reports and other documents
Remedial, rehabilitative and preventive measures must be “active efforts”
Foster Care Placement must be by clear and convincing evidence, use
expert witnesses and show that continued custody by the parent or Indian
custodian is likely to result in serious emotional or physical damage to the
child
TPR must be beyond a reasonable doubt, use expert witness(es), and
show that continued custody by the parent or Indian custodian is likely to
result in serious emotional or physical damage to the child
52
Child Custody Proceedings
1913. Voluntary Termination of Parental Rights
a)
b)
c)
d)
Voluntary consent to foster care or adoption must be taken in writing before
a judge and certified by the court that all requirements in the statute were
met, including that the child must be at least eleven days old (consents are
generally taken on the eleventh day). Notice to tribe not required.
Any parent or Indian custodian may withdraw voluntary consent to foster
care at any time and child must be returned
In any voluntary proceeding for TPR or adoption of an Indian child, the
consent of the parent may be withdrawn at any time for any reason prior to
the final decree of TPR, or adoption, and child must be returned
After the entry of a final decree of adoption the voluntary consent may be
withdrawn if it is shown that it was obtained by fraud or duress, and the
court must vacate the decree and return the child, providing that the
adoption has not been in effect for two years (unless otherwise permitted
under state law)
53
Child Custody Proceedings
1914. Petition to court of competent jurisdiction to invalidate
action upon showing of [ICWA] violations
Any Indian child who is the subject of any action for foster care or TPR
under state law, any parent or Indian custodian from whose custody
the child was removed, and the Indian child’s tribe may petition any
court of competent jurisdiction to invalidate the action if any
provisions found in 1911, 1912 or 1913 are shown to have been
violated.
54
Child Custody Proceedings
1915. Placement of Indian Children
Adoptive placements; preferences
1. a member of the child's extended family
2. other members of the Indian child's tribe
3. other Indian families.
(b) Foster care or pre-adoptive placements; criteria; preferences
(i) a member of the Indian child's extended family; (ii) a foster home
licensed, approved, or specified by the Indian child's tribe; (iii) an
Indian foster home licensed or approved by an authorized nonIndian licensing authority; or (iv) 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.
(c) Social/cultural standards applicable/record of placement/availability
55
Child Custody Proceedings
1917. Tribal affiliation information for protection of rights from
tribal relationship; application of subject of adoptive
placement; disclosure by the court
Adult Indian adoptees shall be informed by the court (in which his
or her adoption took place) of the tribal affiliation of the biological
parents
56
Child Custody Proceedings
1919. Agreements between States and Indian Tribes
•
•
•
Tribes and States may enter into formal written agreements that
guide child welfare casework
Such agreements may be revoked by either party with
appropriate notice
The Department does not currently have any written state-tonation agreements with Florida tribes.
57
Child Custody Proceedings
Improper removal of child from custody; declination of
jurisdiction; forthwith return of child; danger exception
When any petitioner in an Indian child custody proceeding before a
state court has improperly removed the child from custody of the
parent or Indian custodian or has improperly retained custody
after a visit or other temporary relinquishment of custody, the
court shall decline jurisdiction over such petition and shall
forthwith return the child to the parent or Indian custodian unless
returning the child would place the child in immediate danger or
threat of such danger.
58
Child Custody Proceedings
•
•
Nothing in ICWA shall be construed to prevent the emergency
removal of a child to protect that child from danger and imminent
harm.
Actions should then be taken to bring the case into compliance
with ICWA provisions.
59
Federal Guidelines for Implementation of
ICWA by the States
Department of the Interior, Bureau of Indian Affairs
Guidelines for State Courts; Indian Child Custody Proceedings
Published in the Federal Register November 26, 1979
The Secretary of the Interior did not promulgate administrative rules
for implementation of ICWA despite being ordered to do so by
Congress. Instead, suggested “guidelines” for implementation
were published .
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Termination of Parental Rights requires:
• Evidence Beyond a Reasonable Doubt
• Active Efforts
• Testimony by Expert Witness familiar with the child’s tribe
What is the applicability of Interstate Compact?
• On-reservation - not a state and not subject to ICPC, but contact
and coordination with the state agency is always recommended
• Off-reservation – ICPC applies as for any other case
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Rights of Parents and Custodians
• Indian and non-Indian parents have equal rights under ICWA
• Indian Custodians rights are very much the same as the parent
• A Non-Indian Custodian has no rights outlined in ICWA
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“Active Efforts”
• Active efforts go beyond “reasonable efforts” and reflect not simply
an identification of the problems and proposed tasks and solutions,
but must demonstrate proactive casework and active engagement
with the family.
• This is casework that goes beyond merely referring for services to
arranging services and actively assisting families to engage those
services.
• There is an emphasis on culturally appropriate casework and
working in collaboration with tribes to assure services.
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Expert Witness in Indian Cases
• The Expert Witness in Indian cases is not necessarily an expert in
ICWA or in child welfare in general, but is an expert on the culture
and the unique family and child rearing traditions and practices of
the Indian child’s tribe.
• The Expert Witness testifies specifically regarding the family and
child rearing practices unique to the child’s tribe.
• Expert Witnesses allow the court to assess the child’s safety and
well-being within the context of tribal family traditions and practices
that may not be those of the dominant culture.
• An Expert Witness is required for (1) removal of a child from his/her
parent or Indian Custodian and for (2) TPR. They may appear by
telephone if the court agrees.
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Cases in which ICWA does not
apply:
• An award of custody pursuant to a divorce where one of the parents
will obtain custody of the child. If custody is to be awarded to
someone other than the one of the parents, ICWA will apply.
• A placement based upon an act which, if committed by an adult,
would be deemed a crime (Department of Juvenile Justice cases).
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MISSISSIPPI CHOCTAW INDIAN BAND
v. HOLYFIELD, 490 U.S. 30 (1989)
• Twins born off-reservation and voluntarily placed for adoption by
their birth parents with a non-Indian family. Choctaw tribe
intervenes and files a motion to vacate the adoption decree
pursuant to the ICWA. Adoption reversed by the U.S. Supreme
Court three years after finalization of the adoption in Mississippi.
• The ruling addressed the issue of “domicile” on a reservation
stating that because the parents resided on the reservation, so did
the newborns, although the children had never physically been
there.
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MISSISSIPPI CHOCTAW INDIAN BAND
v. HOLYFIELD, continued:
“This result is not altered by the fact that they were "voluntarily
surrendered" for adoption. Congress enacted the ICWA because of
concerns going beyond the wishes of individual parents, finding that
the removal of Indian children from their cultural setting seriously
impacts on long-term tribal survival and has a damaging social and
psychological impact on many individual Indian children.”
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Determining Tribal Membership
• Each tribe has unique criteria for establishing membership
and only the tribe can make that determination.
• The amount of “blood quantum” (1/4, 1/8, 1/16, etc.) is not a
factor considered by all tribes when determining
membership. Some tribes require a specific amount of blood
quantum, some do not use blood quantum as criteria at all.
• A tribe’s sole and final authority for determining membership
has been upheld by the United States Supreme Court in
Santa Clara Pueblo v. Martinez 436 U.S. 49 (1978).
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Santa Clara Pueblo v. Martinez 436
U.S. 49 (1978)
• Julia Martinez was a member, living on-reservation, of the Santa
Clara Pueblo tribe in New Mexico. She married a Navajo and had
children. Membership in the Santa Clara tribe is through the
paternal line only. The Martinez children are not eligible for
membership in the Santa Clara tribe despite spending their lives
on the Santa Clara reservation and being the children of a Santa
Clara woman and tribal member.
• A tribe’s determination regarding membership is conclusive.
Tribes have inherent authority to determine their own membership
and their decisions are binding upon federal and state authorities.
• Tribal enrollment guidelines include using base rolls and blood
quantum as eligibility requirements. Requirements can also
depend on whether the tribe requires maternal or paternal lines of
descent.
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Tools for ICWA Compliance in Florida…
• The Federal Register is published by the Office of the Federal
Register, National Archives and Records Administration (NARA),
which is the official daily publication for rules, proposed rules, and
notices of Federal agencies and organizations, as well as
executive orders and other presidential documents. The web site
is: www.archives.gov
• Department of the Interior, Bureau of Indian Affairs
publications regarding ICWA:
– Federal Guidelines for Implementation (1979)
– Indian Entities Recognized and Eligible to Receive Services
from the United States Bureau of Indian Affairs
– Indian Child Welfare Act: Receipt of Designated Tribal Agents
for Service of Notice
• Notice must go to the Designated Tribal Agent for ICWA for
legal sufficiency
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Florida Statutes, Florida Administrative
Code and DCF Operating Procedure
• Section 39.012, Florida Statutes
– Defers to federal authority and authorizes the Department to
adopt rules for implementation
• Florida Administrative Code Chapter 65C-28.013
– Child Protective Investigators shall determine at the onset of
each child protective investigation if the children are
American Indian or Alaskan Native children as defined by the
Act.
• CF-OP No. 175-36 (1998)
– “Reports and Services Involving Indian Children”
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Forms , Suggested Formats and Guidance
for Establishing Eligibility for the
Protections of ICWA:
ICWA resources are available online at Florida’s Center for the
Advancement of Child Welfare Practice here:
http://centerforchildwelfare.fmhi.usf.edu/kb/icwa/Forms/AllItems.aspx
• CF-FSP 5323 and CF-FSP 5323S (Spanish) are also on DCF Forms
online
• Sample notification/inquiry letter to Tribe
• Sample notification/inquiry letter to BIA
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ICWA and ASFA
•
ICWA compliance should not impact ASFA permanency time frames if
properly applied at the initiation of the case. Failure to apply ICWA
guidelines and subsequent “back-tracking” to bring the case into compliance
can impact timeliness of permanency, including lengthy appeals.
•
Never assume a child has no Indian ancestry. If you do not ask the
question, you cannot know.
•
ICWA eligibility often has very little to do with physical appearance, racial
identification, ethnicity, residence, or similar factors.
•
Any child involved in a child custody investigation or proceeding should be
questioned regarding possible American Indian ancestry and the
information documented in the Florida Safe Families Network.
•
If American Indian ancestry is claimed, the case should be treated as an
ICWA case until such time as a negative response is received from the tribe
or the court issues a finding to the contrary.
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ICWA Eligible?
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ICWA and MEPA
“The relationship between Indian tribes and the federal government is
a “political” relationship between two [sovereign] nations, not a
relationship based on the racial classification of Native Americans.
The Supreme Court has recognized that Congress can treat Native
Americans differently from other racially distinct groups…because
of the unique relationship between the tribes and the government.”
-The Indian Child Welfare Act Handbook
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Tribal Agreements
• Always determine first if there is an existing Tribal Agreement
between the state and the tribe that will guide child welfare
procedure. There may also be existing procedural guidelines in
place for contacts on the reservations or for handling cases involving
Indian children.
• We have no jurisdiction on Indian lands or reservations; however,
we do have a working relationship with the Seminole Tribe of Florida
regarding child protective investigations and case management on
their reservations.
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American Indian/Alaskan Native
Statistics from the 2010 U.S. Census
Florida is one of fifteen states with more than 100,000 American Indian
and Alaska Native residents as of the 2010 Census.
The above fifteen states are California, Oklahoma, Arizona, Texas,
New York, New Mexico, Washington, North Carolina, Florida,
Michigan, Alaska, Oregon, Colorado, Minnesota and Illinois.
American Indian/Alaskan Natives comprise 0.9% of the overall
population in Florida. This number references those census
respondents who reported being American Indian/Alaskan Native
either as one race alone or in combination with another race.
Florida’s population in 2010 was 18,801,310. The number of American
Indian/Alaskan Natives reported living in Florida is 162, 562, either
alone or in combination with another race.
- U.S. Census Bureau
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Florida’s Federally Recognized Tribes
•
Florida’s only two federally recognized tribes are the Seminole Tribe of Florida and the
Miccosukee Tribe of Indians of Florida. They are descended from Muscogee (“Creek”)
Indians who migrated to Florida from Georgia and Alabama in the 1700s, and are not
historically indigenous to Florida.
•
Florida’s original indigenous tribes at the time of European contact no longer exist.
•
Reservations in Florida are the six Seminole reservations at Hollywood, Big Cypress,
Fort Pierce, Brighton, Immokalee, and Tampa, and
•
The three Miccosukee reservations on the Tamiami Trail, on Alligator Alley (SR 84) and
on Krome Avenue in Miami.
•
The Seminole and Miccosukee comprise less than 5 percent of the American Indian
population residing in Florida . There are approximately 3600 enrolled members the
Seminole Tribe of Florida and approximately 600 enrolled in the Miccosukee Tribe.
•
A third tribe, the Poarch Band of Creek who have a reservation located in Atmore,
Alabama, have tribal members living in the panhandle of Florida.
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The National Indian Child Welfare
Association
• Known as NICWA, the National Indian Child Welfare
Association, located in Portland, Oregon, is the National
Resource Center for information, technical assistance, training
and consultation on ICWA and Indian Child Welfare. NICWA
works in collaboration with the Child Welfare League of
America.
• Their website can be accessed at: www.nicwa.org
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Alaskan
Native
Mother and
Infant
Nome, Alaska
Circa 1915
-National Archives and
Records Administration
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Property of the State of Florida
Department of Children and Families
Presentation prepared by:
Linda D. Johns, MSW
Senior Management Analyst Supervisor/Federal Policy and Program
Indian Child Welfare Act Program Manager and Tribal Liaison
Office of Child Welfare
1317 Winewood Boulevard
Tallahassee, Florida 32399
(850) 717-4664
Linda_D_Johns@dcf.state.fl.us
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