Transcript Evie Campbell, MSW Objectives:  Understanding the historical context of why ICWA, MIFPA and the Tribal State Agreement were recreated.  Understand how.

Evie Campbell, MSW
Objectives:
 Understanding the historical context of why ICWA,
MIFPA and the Tribal State Agreement were recreated.
 Understand how ICWA is implemented.
 Understand how to apply ICWA to a case study.
In the Beginning:
Historical Account
Out-of-home placement for American Indian children
can be traced back to the boarding schools (Redhorse et
al., 2000). At these institutions children were told not
to speak their language or practice their spirituality and
were made to change the way they dressed by cutting
their hair and wearing uniforms. They were taught to
be ashamed of who they were as indigenous people.
Violations of international
human rights laws
 Universal Declaration of Human Rights
 The International Covenant on Civil and Political
Rights guarantees indigenous groups the right to enjoy
their own culture, practice their own language and use
their own language (Roberts, 2002).
 The Convention of the Rights of the Child provides
that when the state places children in substitute care
efforts should be made to preserve a child’s cultural
identity (Roberts, 2002)
 The United Nations defines genocide as forcibly
transferring children from one group to another.
Out-of-home placement
 In 1974 a national survey by the Association on
American Indian Affairs found that about 25% or more
of American Indian children were removed from their
families and placed in foster care, group homes,
residential schools, other institutions or adopted.
 During 1971 and 1972 in Minnesota, one-fourth of
American Indian children under the age of one had
been adopted and 90% were in non-Indian homes.
Current Statistics
 The Minnesota Department of Human Services reported in 1998
that overall, minority children of African American, American
Indian, Asian/Pacific Islander or Hispanic race or heritage
accounted for 39.6% of the children in out-of-home placement.
 In six counties in Minnesota, the percentage of minority children
in out-of-home placement ranged from 54.3% to as high as 85.1%.
Four of the counties; Cass (54.3%), Beltrami (75.6%), Clearwater
(60.5%) and Mahnomen (85.1%) are on or near a Minnesota Indian
reservation. Two of the counties; Hennepin (71.9%) and Ramsey
(60%) are urban counties (Minnesota Department of Human
Services, 1998).
 In Minnesota, 11.1% of the children in out-of-home placements in
1998 were American Indian, although they only made up 1.8% of
the state’s children population (Kuchera, 2001). Indian children in
Minnesota are placed at an earlier age, have more multiple
placements and serve longer periods of placement (Redhorse et al.,
2000).
Legal Implications
 Tribal Sovereignty-tribes have inherent rights that
were never lost.
 Tribal membership is a political status.
 Self-determination policies gives tribes exclusive
jurisdiction and decision making power over their
children
Minnesota Indian Family
Preservation Act (MIFPA)
The MIFPA was passed in 1987 to strengthen and expand
parts of ICWA. Minnesota took the federal law and made
it a state law, whereby, the state law imposes higher
standards of protection. The federal law requires children
who are eligible for membership to also be the biological
child of member. The state law differs from the federal law
by recognizing Indian children as those eligible for
membership giving tribes the authority to define its
members (Graves & Ebbott, 2006).
Tribal State Agreement
In Minnesota, the Tribal State Agreement was intended to address how
Indian children should be cared for under the requirements of ICWA and
the MIFPA. The ICWA, authorizes states and tribes to form an agreement
regarding the care and custody of Indian children, and who has jurisdiction
over these children in child custody proceedings . Agreements may also be
revoked with notice to the other party.
The main objective of the Agreement is to set up procedures for county
social workers and others to follow the laws (Graves & Ebbott, 2006).
This legislation provided a framework for how to best care for American
Indian children when they are placed in the state child protection system.
The Agreement created valuable safeguards to aid in the cultural
considerations of American Indian children when they are removed from
home and placed in the care of the state.
Best Interest of an Indian Child
The Tribal State Agreement defines
best interest of an American Indian
child as a sense of belonging to a
family, extended family, clan and tribe.
American Indian families
clan
tribe
elders
community
extended family
parents
Ch ild
Goals of ICWA
1. Strengthen Indian families.
2. Protect tribal interests.
3. Keep decisions within the Indian
Community
Duties under ICWA:
 Identifying ICWA children
 Promoting the rights of parents and
tribes pursuant ICWA
Consequences for Non-Compliance of ICWA
 Dismiss the petition and return the child.
 Issues of non-compliance can be reported to
the Indian Child Welfare Program
Consultant at DHS.
 Ombudsperson for Indian Family.
 Malpractice actions against the attorneys.
ICWA applies when:
1. Indian Child
2. Child Custody Proceeding
Indian Child
ICWA Definition:
Member of an Indian tribe or Eligible for
membership
AND the biological child of a member
Higher standard definition
Minnesota Definition:
Member of an Indian tribe; or eligible for
membership. Not enrollment.
Enrollment is not always required to be
a member of a tribe.
Give example.
Child Custody Proceeding
 Foster Care Placements
 Preadoptive and adoptive placements
 Status offence disposition placements
 Permanency proceedings
 Termination of parental rights (TPR) –
customary adoptions
 Third party custody actions
 Long term foster care
Jurisdiction
1. Exclusive Jurisdiction over children
who are wards of tribal court; and
2. Tribal courts have exclusive
jurisdiction over children who reside
or are domiciled on the reservation.
General Rule Exception
Exception exist for tribes who are subject to
Public Law 280
Public Law 280 gives state courts concurrent
jurisdiction with tribal courts over children
residing or domiciled on the reservation. In
Minnesota, all reservations are Public Law
280, with the exception of Red Lake & Bois
Forte.
Notice must be given to tribes:
 Potential of placement
 Emergency removal
 Court jurisdiction
Notice




No court hearing until 10 days
after receipt of the notice.
And sent by registered mail,
return receipt requested
If more than 1 tribe, notice to all
tribes.
If more than 1 tribe responds,
tribes will decide.
Notice continued
Notice is sent to parents, or Indian
custodians, and to Indian child’s tribe.
If tribe is unknown, notice is sent to the local
BIA office.
Parent
 Biological mother,
 Biological father, married to mother,
 Indian, adoptive parent,
 Unwed father who has established or
acknowledged paternity.
Acknowledgement is ANY ACTION
taken by a man to hold himself out as
the father.
Indian Custodian
An Indian person who has legal custody
of an Indian child by tribal or state
court order, or someone to whom
temporary physical custody has been
transferred by the parent.
Indian Tribe
Federally-recognized tribes are
recognized as eligible for services
provided to Indians by the United
States government.
Intervention
The tribe and Indian custodian have an
absolute right to intervene in the
proceeding, at any point and tribes
have automatic party status.
Transfer of Jurisdiction to Tribal
Court
Mandated unless:
•
Parent objects,
•
Tribal court declines, or
•
Good cause found.
Three examples of good cause:
 Child’s tribe does not have a tribal court.
 Parties are forum shopping.
 Undue hardship to the parties, witnesses.
Transfer of Jurisdiction to Tribal
Court
County remains responsible for
placement costs.
Emergency & Non-Emergency
Removal of an Indian Child
Emergency Removals:
Defined as: Necessary to prevent imminent
physical damage or harm. Emotional abuse alone
is not enough.
Within 72 hours, must file a petition in state court,
transfer the child to the jurisdiction of tribal court
OR return the child.
Foster care placement preference is used.
Non-Emergency Removals:
If there is not imminent physical damage or harm, prior
to a child’s removal from the home you must give notice,
verify membership, determine jurisdiction and get input
in risk assessment AND
In a non-emergency removal, you must provide
qualified expert witness testimony that the child
is likely to suffer from serious emotional and
physical damage or harm if left in the care of the
parent, as well as demonstrate that active efforts
were used to prevent the placement and/or
reunify the child with his or her family.
1.Qualified expert witness is
defined in the Tribal/State
Agreement as a member in the
child’s tribe or has significant
experience with child tribe and
knowledge and understanding of…
 meaning of clan relationships and extend family;
 traditional and contemporary child rearing
practices;
 traditional disciplinary measures used;
 ceremonial practices;
 medicine and traditional healing; and
 effect of acculturation or assimilation
in child’s tribe.
2. Active efforts are different from
reasonable actives and are defined
as…rigorous and concerted level of
case work that uses prevailing
social and cultural values; way of
life of Indian tribe to preserve
family, prevent placement and
reunify.
Non-emergency removals
continued
Can’t do it if the tribal court has
exclusive jurisdiction.
Foster Care Placement
Extended family member,
2. Home licensed, approved or
specified by the tribe,
3. Indian foster home,
4. Institution approved by the tribe or
operated by an Indian organization
1.
Adoptive Placement Preferences
Extended family members,
2. Other tribal members,
3. Other Indian families.
1.
Placement preferences continued
Need good cause to not follow
the placement preferences.
Good cause:
A determination of good cause not to follow the order of
preference set out is the ICWA should be limited to a
finding by the court of one or more of the following
considerations:
1. Request of a parent or a child of sufficient age.
2. Extraordinary physical or emotional needs of the
child.
3. Unavailability of suitable families with the placement
preference order.
Permanency Proceedings
 Active efforts always required.
 Qualified expert witness testimony
required.
 Notice, intervention and transfer of
jurisdiction provisions apply.
 TPR’s must be proven beyond a
reasonable doubt.
Voluntary Foster Placements
 Notice within 7 days
 Signed by judge, written agreement
 Child return on demand
Voluntary TPR’s
• Notice required
• Consent can not given within 10 days of birth
• Can be withdrawn any time before entry of final
order
• And
• For up to 2 years after entry of final adoption
decree, adoption may be vacated if the consent
was obtained through fraud or duress.
Changes of Placement
 ICWA applies to all changes in
placement.
 Parents can petition for return of child
if adoption is vacated. 25 USC 1916(a)
Resources:
Indian Child Welfare Act, 25 U.S.C. sections 1901 to
1963 [ICWA]
BIA Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Fed. Reg. 67,583 (1979) [BIA
Guidelines]
Minnesota Indian Family Preservation Act, Minn. Stat.
sections 260.751 to 260.835 [MIFPA]
Minnesota Tribal/State Indian Child Welfare Agreement
(February 22, 2007) [TSA]
Minnesota Dep’t of Human Services, Social Services
Manual, XIII-3500 to 3687 (September 29, 1998) [SSM]
You have the option of taking the case study after this
presentation.
The case study can be found on this week’s agenda on
the moodle website.
There is also an a forum set up for comments or
questions. No grade will be attached to this forum.
The purpose is to answer questions student’s have after
viewing the powerpoint presentation.