THE INDIAN THE INDIAN CHILDCHILD

WELFARE ACTWELFARE ACT

Florida Practice and PolicyFlorida Practice and Policy

with with

Guidelines for Best PracticeGuidelines for Best Practice

Department of Children and FamiliesDepartment of Children and Families

Office of Child WelfareOffice of Child Welfare

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Why “ICWA”?Why “ICWA”?

Knowledge of the Knowledge of the Indian Child Welfare Act Indian Child Welfare Act is essential foris essential for

Child WelfareChild Welfare

Legal and JudiciaryLegal and Judiciary

Mental HealthMental Health

Foster Care and Adoptions Foster Care and Adoptions

CaregiversCaregivers

Training Session FormatTraining Session Format

This training is a 3.0 hour session.This training is a 3.0 hour session.

There will be one 15 minute break after There will be one 15 minute break after the first 1.5 hours.the first 1.5 hours.

This curriculum has been approved by This curriculum has been approved by the Florida Bar for 3.5 hours of the Florida Bar for 3.5 hours of

Continuing Legal Credits. Continuing Legal Credits.

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OBJECTIVESOBJECTIVESParticipants will:Participants will:

• Be able to discuss the unique relationship between the federal Be able to discuss the unique relationship between the federal government and the Indian Nations and to explain the concept of government and the Indian Nations and to explain the concept of tribal sovereignty tribal sovereignty

• Define two key terms:Define two key terms: cultural assimilation vs. forced cultural cultural assimilation vs. forced cultural assimilation assimilation andand displacementdisplacement

• Have a working knowledge of the essential mandates and Have a working knowledge of the essential mandates and protections of the Indian Child Welfare Act protections of the Indian Child Welfare Act

• Learn the historic basis for the Indian Child Welfare ActLearn the historic basis for the Indian Child Welfare Act• Develop the ability to apply the spirit and intent of the Act to child Develop the ability to apply the spirit and intent of the Act to child

welfare practice in the fieldwelfare practice in the field• Display improved competency in casework and field practice with Display improved competency in casework and field practice with

American Indian/Alaskan Native culturesAmerican Indian/Alaskan Native cultures• Become familiar with information regarding the two federally Become familiar with information regarding the two federally

recognized Florida tribes and with ICWA practice and policy recognized Florida tribes and with ICWA practice and policy specific specific to Floridato Florida

• Develop an awareness of American Indian/Alaskan Native Develop an awareness of American Indian/Alaskan Native population statisticspopulation statistics

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““...that there is no greater resource that ...that there is no greater resource that is more vital to the continued existence is more vital to the continued existence and integrity of Indian tribes than their and integrity of Indian tribes than their children…”children…”

The Congress hereby declares that it is the policy of this Nation to protect 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 the best interest of Indian children and to promote the security and stability of Indian tribes and families of Indian tribes and families by the establishment of minimum Federal by the establishment of minimum Federal standards for the removal of Indian children from their families…standards for the removal of Indian children from their families…

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Indian Child Welfare Act Indian Child Welfare Act November 8, 1978November 8, 1978

What guides our ICWA work in Florida?What guides our ICWA work in Florida?

– Section 39.012, Florida Statute, (rule making authority)Section 39.012, Florida Statute, (rule making authority)

– State-to-nation agreements with Florida tribesState-to-nation agreements with Florida tribes

– Section 65C-28.013, Florida Administrative CodeSection 65C-28.013, Florida Administrative Code

– Core training for all child welfare and legal staff (in pre-service)Core training for all child welfare and legal staff (in pre-service)

– Ongoing in-service technical assistance opportunitiesOngoing in-service technical assistance opportunities

– Electronic systems that track ICWA data for federal and other Electronic systems that track ICWA data for federal and other reporting (Florida Safe Families Network) reporting (Florida Safe Families Network)

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Federal Law Related to Federal Law Related to Indian NationsIndian Nations

A unique body of federal legislation that specifically addresses A unique body of federal legislation that specifically addresses issues relating to American Indian tribes and defines issues relating to American Indian tribes and defines jurisdictional and other issues on such topics as:jurisdictional and other issues on such topics as:

• Criminal law Criminal law • Natural resources, i.e., land, water, hunting, fishing, mining Natural resources, i.e., land, water, hunting, fishing, mining

rightsrights• Child welfare and other social welfare issuesChild welfare and other social welfare issues• GamingGaming

This legislation is based upon the This legislation is based upon the unique political relationship unique political relationship that exists between the Congress of the United States and the that exists between the Congress of the United States and the Indian Nations and it continues to be influenced and re-shaped Indian Nations and it continues to be influenced and re-shaped by Supreme Court decisions that interpret the concept of by Supreme Court decisions that interpret the concept of tribal tribal sovereigntysovereignty..

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The Foundations of Federal The Foundations of Federal Law Relating to Tribes and the Law Relating to Tribes and the

Indian Child Welfare ActIndian Child Welfare Act

• ““Indian tribes are Indian tribes are sovereign entities whose existences predate the sovereign entities whose existences predate the ratification of the U. S. Constitutionratification of the U. S. Constitution. The Supreme Court long ago . The Supreme Court long ago recognized tribes as ‘domestic dependent nations’ with a unique recognized tribes as ‘domestic dependent nations’ with a unique relationship to the federal government.”relationship to the federal government.”

• ““Indian nations have long been recognized as retaining Indian nations have long been recognized as retaining the inherent the inherent authority to regulate domestic relations among their membersauthority to regulate domestic relations among their members .”.”

• “…“…ICWA is simply a realization and a codification of the legal ICWA is simply a realization and a codification of the legal landscape that existed before its passage.”landscape that existed before its passage.”

-The Indian Child Welfare Act Handbook-The Indian Child Welfare Act Handbook

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““SOVEREIGNTY” DEFINED:SOVEREIGNTY” DEFINED:

The supreme, absolute, and uncontrollable power by which any The supreme, absolute, and uncontrollable power by which any independent state is governed; supreme political authority; independent state is governed; supreme political authority; paramount control of the constitution and frame of government and its paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power, from which administration; the self-sufficient source of political power, from which all specific political powers are derived, the international all specific political powers are derived, the international independence of a state, combined with the right and power of independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political regulating its internal affairs without foreign dictation; also a political society, or state, which is sovereign and independent..society, or state, which is sovereign and independent..

-Black’s Law -Black’s Law DictionaryDictionary

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Defining American Indian Tribal Defining American Indian Tribal Sovereignty and Congressional Sovereignty and Congressional Jurisdiction over Indian NationsJurisdiction over Indian Nations

The Commerce Clause of the U.S. Constitution (Article I, Section 8, The Commerce Clause of the U.S. Constitution (Article I, Section 8, Clause 3) is the primary source of federal authority regarding Indian Clause 3) is the primary source of federal authority regarding Indian tribes and has been the vehicle used by Congress to recognize and tribes and has been the vehicle used by Congress to recognize and define tribal sovereignty. In addition, the Supreme Court has ruled define tribal sovereignty. In addition, the Supreme Court has ruled that Congress, as the legislative body of the nation, has an intrinsic that Congress, as the legislative body of the nation, has an intrinsic power to conduct business with and enact legislation concerning the power to conduct business with and enact legislation concerning the Indian Nations that reside within the borders of the United States.*Indian Nations that reside within the borders of the United States.*

““The Congress shall have Power…To regulate Commerce with The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian foreign Nations, and among the several States, and with the Indian Tribes;”Tribes;”

-U.S. Constitution-U.S. Constitution

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The Two Theories of Tribal The Two Theories of Tribal SovereigntySovereignty

The [Indian Nations] have inherent sovereignty that predates the The [Indian Nations] have inherent sovereignty that predates the “discovery” of the Americas.“discovery” of the Americas.

The [Indian Nations] have only those attributes of sovereignty that The [Indian Nations] have only those attributes of sovereignty that Congress bestows upon them.Congress bestows upon them.

Historically, the Supreme Court has relied on these two views in Historically, the Supreme Court has relied on these two views in defining tribal sovereignty cases*defining tribal sovereignty cases*

*Philip J. *Philip J. PrygoskiPrygoskiFrom Marshall to Marshall: The Supreme Court’s changing stance on tribal sovereigntyFrom Marshall to Marshall: The Supreme Court’s changing stance on tribal sovereignty

http://www.abanet.org/genpractice/compleat/http://www.abanet.org/genpractice/compleat/f95marshall.htmlf95marshall.html

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The “Marshall Trilogy”:The “Marshall Trilogy”: Named for Chief Justice John Marshall, these Supreme Court Named for Chief Justice John Marshall, these Supreme Court decisions further defined the doctrinal basis for interpreting Federal decisions further defined the doctrinal basis for interpreting Federal Indian Law and the concept of tribal sovereignty.Indian Law and the concept of tribal sovereignty.

• Johnson v. McIntosh (21 U.S. (8 Wheat.) 543 (1823)):Johnson v. McIntosh (21 U.S. (8 Wheat.) 543 (1823)): Tribes cannot Tribes cannot convey lands to private parties without the consent of the federal convey lands to private parties without the consent of the federal government. Origins of the “trust” doctrine and the government. Origins of the “trust” doctrine and the authority of the federal authority of the federal government and Congress over Indian nations.government and Congress over Indian nations.

• Cherokee Nation v. Georgia (30 U.S. (5 Pet.) 1 (1831)):Cherokee Nation v. Georgia (30 U.S. (5 Pet.) 1 (1831)): Established tribes Established tribes as as “domestic dependent nations”, “domestic dependent nations”, not foreignnot foreign nationsnations,, and established and established the the “trust relationship”“trust relationship” between tribes and the federal government. Tribes between tribes and the federal government. Tribes are are “nations within a nation”“nations within a nation” under the protection of the United States. under the protection of the United States. TheThe guardian/ward guardian/ward relationship is established. This decision found that the relationship is established. This decision found that the Cherokee were not entitled to bring suit as a foreign nation or as a state.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)): Worcester v. Georgia (31 U.S. (6 Pet.) 515 (1832)): Affirmed the federal Affirmed the federal government's exclusive right to treat government's exclusive right to treat “the Indian nations…as distinct, “the Indian nations…as distinct, independent, political communities”independent, political communities” outside the reach of the statesoutside the reach of the states.. The case involved a missionary (Worcester) to the Cherokees who failed to The case involved a missionary (Worcester) to the Cherokees who failed to obtain a license as required by a Georgia statute. obtain a license as required by a Georgia statute. The Supreme Court The Supreme Court ruled that, since the Cherokees must be regarded as an independent ruled that, since the Cherokees must be regarded as an independent nation, the Georgia law violated the Commerce Clause of the nation, the Georgia law violated the Commerce Clause of the Constitution.Constitution.

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Principles of Federal Law and Principles of Federal Law and the Indian Child Welfare Actthe Indian Child Welfare Act

• ““Even before the enactment of ICWA, the courts had acknowledged that Even before the enactment of ICWA, the courts had acknowledged that Indian tribes, Indian tribes, not the statesnot the states, , could regulate marriage among tribal could regulate marriage among tribal members; adoption of Native American children; divorce and property members; adoption of Native American children; divorce and property distribution among Native Americans, and the rights and privileges of distribution among Native Americans, and the rights and privileges of children.”children.”

• “…“…as a general principle, as a general principle, states are preempted from exercising any states are preempted from exercising any authority over Indian tribes if that exercise of authority authority over Indian tribes if that exercise of authority clashes with clashes with federal authority.”federal authority.”

- B.J. Jones- B.J. Jones

The Indian Child Welfare Act HandbookThe Indian Child Welfare Act Handbook

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North American History and the North American History and the Social and Political Framing of Social and Political Framing of

ICWAICWA

• The Indian Child Welfare Act is, in part, a response to hundreds of 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 years of political and social policy that resulted in the decimation of the American Indian people and their culture. the American Indian people and their culture.

• Repeated efforts and policies of Repeated efforts and policies of forced cultural assimilationforced cultural assimilation, ,

displacementdisplacement, and the , and the unwarranted removal of Indianunwarranted removal of Indian childrenchildren from their families by states, prompted Congress to enact legislation from their families by states, prompted Congress to enact legislation that would that would establish minimum federal standardsestablish minimum federal standards for the removal for the removal of American Indian children from their families.of American Indian children from their families.

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U.S. Department of the U.S. Department of the InteriorInterior

The Bureau of Indian The Bureau of Indian AffairsAffairs• The “BIA” was created in 1824 as a part of the U.S. War Department 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 and transferred in 1849 to the Department of the Interior. It is responsible for overseeing the protection of American Indians and responsible for overseeing the protection of American Indians and acts as a trustee over American Indian lands and funds, promotes acts as a trustee over American Indian lands and funds, promotes agricultural and economic development, provides health, education agricultural and economic development, provides health, education and social services programs, and reclamation projects.and social services programs, and reclamation projects.

• There are 12 regional BIA offices in the United States.There are 12 regional BIA offices in the United States.

• Florida is in the Florida is in the Eastern BIA RegionEastern BIA Region. .

• Our BIA Regional Office is located at: Our BIA Regional Office is located at: 545 Marriott Drive, Suite 700, Nashville, Tennessee 37214545 Marriott Drive, Suite 700, Nashville, Tennessee 37214

Telephone: 615-564-6740Telephone: 615-564-6740 Fax: 615-564-6547Fax: 615-564-6547• Our current BIA liaison is Gloria York, MSW. Our current BIA liaison is Gloria York, MSW.

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AMERICAN INDIAN POLICY AMERICAN INDIAN POLICY AND ICWAAND ICWA

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THE COLONIAL PERIODTHE COLONIAL PERIOD1492 - 17761492 - 1776

• ““Discovery of the New World”Discovery of the New World”

– Conquest of the Americas by Spain, France, EnglandConquest of the Americas by Spain, France, England– Objectives include military power and domination, acquisition of wealth Objectives include military power and domination, acquisition of wealth

and territory, religious conversionand territory, religious conversion– Results are domination, subjugation, enslavement and removal of Results are domination, subjugation, enslavement and removal of

existing inhabitantsexisting inhabitants– Indigenous people later are regarded as independent “nations” and Indigenous people later are regarded as independent “nations” and

negotiated with European powers by treaty negotiated with European powers by treaty

• Effects of European colonialism on indigenous peopleEffects of European colonialism on indigenous people

– Loss of natural resources, cultural erosion and forced assimilationLoss of natural resources, cultural erosion and forced assimilation– Decimation of indigenous populations through war, exploitation and Decimation of indigenous populations through war, exploitation and

diseasedisease• from over 5 million in 1492 to 237,000 in 1900, back to over 2 from over 5 million in 1492 to 237,000 in 1900, back to over 2

million in 2000 million in 2000

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Displacement and AssimilationDisplacement and AssimilationThe Dismantling of a The Dismantling of a

PeoplePeopleThe most effective way to divest a nation and a people of their The most effective way to divest a nation and a people of their

sense of unity, of a common purpose, and of their unique, sense of unity, of a common purpose, and of their unique, historical connections, is to strip them of their culture, to historical connections, is to strip them of their culture, to destroy their collective identity, and to compromise and destroy their collective identity, and to compromise and

disengage their family and community systemsdisengage their family and community systems..

• Historic PrecedentsHistoric Precedents: The Scottish Uprising of 1745 and the English Act of : The Scottish Uprising of 1745 and the English Act of ProscriptionProscription: After the Battle of Culloden (1746), Scots are forbidden : After the Battle of Culloden (1746), Scots are forbidden (outlawed) by the English to play bagpipes, wear kilts or tartan plaids, or to (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 speak Gaelic. There is an effort to dismantle the Highland clan system, and any attributes of Highland culture are any attributes of Highland culture are stripped to discourage future stripped to discourage future rebellion and to promote assimilation to the English culture and rebellion and to promote assimilation to the English culture and subjugation to English rule, to remove the will to resistsubjugation to English rule, to remove the will to resist . The ultimate . The ultimate goal was to destroy any sense of Scottish nationalism or unity, and to end the goal was to destroy any sense of Scottish nationalism or unity, and to end the Scots’ will to continue the fight for independence (Scots’ will to continue the fight for independence (forced cultural forced cultural assimilationassimilation).).

• The “Clearances” forcibly removed Scottish clans from ancestral lands The “Clearances” forcibly removed Scottish clans from ancestral lands ((displacementdisplacement).).

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From From The Act of ProscriptionThe Act of Proscription, , August 1, 1746:August 1, 1746:

• ""That from and after the first day of August, One thousand, seven 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 hundred and forty-seven, no man or boy within that part of Britain called Scotland, other than such as shall be employed as Officers called Scotland, other than such as shall be employed as Officers and Soldiers in His Majesty's Forces, shall, on any pretext whatever, and Soldiers in His Majesty's Forces, shall, on any pretext whatever, wear or put on the clothes commonly called Highland clothes (that is wear or put on the clothes commonly called Highland clothes (that is to say) the Plaid, Philabeg, or little Kilt, Trowse, Shoulder-belts, or to say) the Plaid, Philabeg, or little Kilt, Trowse, Shoulder-belts, or any part whatever of what peculiarly belongs to the Highland Garb; 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 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 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 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 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 be liable to be transported to any of His Majesty's plantations beyond the seas, there to remain for the space of seven years. "the seas, there to remain for the space of seven years. "

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From From The Act of ProscriptionThe Act of Proscription, , August 1, 1746:August 1, 1746:

• ""That from and after the first day of August, One thousand, seven 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 hundred and forty-seven, no man or boy within that part of Britain called Scotland, other than such as shall be employed as Officers called Scotland, other than such as shall be employed as Officers and Soldiers in His Majesty's Forces, shall, on any pretext whatever, and Soldiers in His Majesty's Forces, shall, on any pretext whatever, wear or put on the clothes commonly called Highland clothes (that is wear or put on the clothes commonly called Highland clothes (that is to say) the Plaid, Philabeg, or little Kilt, Trowse, Shoulder-belts, or to say) the Plaid, Philabeg, or little Kilt, Trowse, Shoulder-belts, or any part whatever of what peculiarly belongs to the Highland Garb; 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 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 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 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 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 be liable to be transported to any of His Majesty's plantations beyond the seas, there to remain for the space of seven years. "the seas, there to remain for the space of seven years. "

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THE INDIAN REMOVAL THE INDIAN REMOVAL PERIODPERIOD 1776- 18301776- 1830

PRESIDENT ANDREW JACKSONPRESIDENT ANDREW JACKSON, , 2nd Annual Address to Congress, 2nd Annual Address to Congress, 18301830..

“[Removal] will separate the Indians from immediate contact with “[Removal] will separate the Indians from immediate contact with settlements of whites; free them from the power of the States; enable 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 them to pursue happiness in their own way and under their own rude institutions; will retard the progress of decay, which is lessening their institutions; will retard the progress of decay, which is lessening their numbers, and perhaps cause them gradually, under the protection of numbers, and perhaps cause them gradually, under the protection of the Government and through the influence of good counsels, to cast the Government and through the influence of good counsels, to cast off their savage habits and become an interesting, civilized, and off their savage habits and become an interesting, civilized, and Christian community.”Christian community.”

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THE REMOVAL PERIOD THE REMOVAL PERIOD continued:continued:

• Indian Removal Act of 1830 – Jacksonian PolicyIndian Removal Act of 1830 – Jacksonian Policy

• Federal policy moved tribes westward to make room for expansion of Federal policy moved tribes westward to make room for expansion of European settlement on the eastern seaboard, reservations established;European settlement on the eastern seaboard, reservations established;

• The The “Trail of Tears”“Trail of Tears”: Southeastern tribes forcibly moved to the Oklahoma : Southeastern tribes forcibly moved to the Oklahoma Territory west of the Mississippi River and former Indian lands in the east Territory west of the Mississippi River and former Indian lands in the east are redistributed to European settlers via land lotteries. are redistributed to European settlers via land lotteries.

• Tribes “relocated” to Oklahoma by the Tribes “relocated” to Oklahoma by the Removal Act of 1830Removal Act of 1830 include the include the Cherokee, Chickasaw, Choctaw, Creek, and Seminole. Cherokee, Chickasaw, Choctaw, Creek, and Seminole.

• A small group of Cherokee remained in the Smoky Mountains and a similar 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 group of Seminole remained in the Everglades. 4000 Cherokee died on the way to Oklahoma from disease, starvation and exposure.way to Oklahoma from disease, starvation and exposure.

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““MANIFEST DESTINY”MANIFEST DESTINY”RESERVATIONS AND TREATIES RESERVATIONS AND TREATIES

1831- 18801831- 1880• 1840’s saw more continental expansion westward; tribes again displaced 1840’s saw more continental expansion westward; tribes again displaced • War with Mexico; growing conflicts with western Indian NationsWar with Mexico; growing conflicts with western Indian Nations• More reservations created, moved and restructured; treaty violationsMore reservations created, moved and restructured; treaty violations• Continued “removal’ of indigenous people from their ancestral lands; constant Continued “removal’ of indigenous people from their ancestral lands; constant

displacement and friction with new settlers and the militarydisplacement and friction with new settlers and the military• Inability of tribes to survive without game because the continued Inability of tribes to survive without game because the continued

encroachment of settlers impacted hunting and fishing lands; tribes were encroachment of settlers impacted hunting and fishing lands; tribes were “hunter/gatherers”; starvation and inability to sustain their families“hunter/gatherers”; starvation and inability to sustain their families

• The loss of natural resources that ensured survival of the tribes brought The loss of natural resources that ensured survival of the tribes brought hunger and starvation, loss of shelter and the traditional means of providing hunger and starvation, loss of shelter and the traditional means of providing for their families; reservations were impoverished and disease riddenfor their families; reservations were impoverished and disease ridden

• Military actions against the tribes developed causing confinement to Military actions against the tribes developed causing confinement to reservations, imprisonment, transfer of Indian prisoners to prisons in the east, reservations, imprisonment, transfer of Indian prisoners to prisons in the east, including Florida (Fort Marion and similar forts/prisons)including Florida (Fort Marion and similar forts/prisons)

• No treaties after 1871No treaties after 1871

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ASSIMILATION AND ASSIMILATION AND INSTITUTIONALIZATIONINSTITUTIONALIZATION

1840 - 19801840 - 1980• Mission SchoolsMission Schools• Boarding SchoolsBoarding Schools

– Fort Marion, FloridaFort Marion, Florida– Carlisle Indian Carlisle Indian

School School • Assimilation PolicyAssimilation Policy• Forced displacementForced displacement

– Destruction of Destruction of longhouseslonghouses

• Families separated by Families separated by adoption policies and adoption policies and programs (American programs (American Indian Adoption Project)Indian Adoption Project)

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Captain Richard Henry Pratt’s Captain Richard Henry Pratt’s “Experiment”“Experiment”

Prisoners at Fort Marion, Castillo de Prisoners at Fort Marion, Castillo de San Marcos, St. Augustine, Florida, San Marcos, St. Augustine, Florida,

with Captain Prattwith Captain PrattMarch/April 1878March/April 1878

The Assimilation PolicyThe Assimilation PolicyWhy take the children?Why take the children?

““It is admitted by most people that the adult savage is not It is admitted by most people that the adult savage is not susceptible to the influence of civilization, and we must susceptible to the influence of civilization, and we must therefore turn to his children, that they might be taught how therefore turn to his children, that they might be taught how to abandon the pathway of barbarism and walk with a sure to abandon the pathway of barbarism and walk with a sure step along the pleasant highway of Christian civilization .... step along the pleasant highway of Christian civilization .... They must be withdrawn, in their tender years, entirely from They must be withdrawn, in their tender years, entirely from the camp and taught to eat, to sleep, to dress, to play, to the camp and taught to eat, to sleep, to dress, to play, to work and to think after the manner of the white man.” work and to think after the manner of the white man.”

- - Commissioner of Indian Affairs Annual Report, H.R. Exec. Doc. Commissioner of Indian Affairs Annual Report, H.R. Exec. Doc. No. 50-1, at XIX (1888).No. 50-1, at XIX (1888).

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MISSION AND MISSION AND BOARDING SCHOOLSBOARDING SCHOOLS

Tulalip Reservation, WashingtonTulalip Reservation, Washington

Tulalip Mission School students Tulalip Mission School students

with the school ‘swith the school ‘s

founder, Father Chirousefounder, Father Chirouse

Circa 1865Circa 1865

Tulalip School founded 1857Tulalip School founded 1857

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A group of Sioux children upon arrival at Carlisle Indian Industrial School, A group of Sioux children upon arrival at Carlisle Indian Industrial School, photographed October 5, 1879. Captain Pratt is on the far left.photographed October 5, 1879. Captain Pratt is on the far left.

-National Archives and Records Administration-National Archives and Records Administration

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Three Pueblo children from San Felipe, New Mexico upon arrival at Carlisle Indian Industrial 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 school, and afterward. They are Sheldon Jackson (Watte), John Shields (Krise-te-wa) and Harvey Townsend (Hem-ri-ti)Harvey Townsend (Hem-ri-ti)

-National Archives and Records Administration-National Archives and Records Administration

Before and after…Before and after…

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Student body at Carlisle Indian Industrial School, Pennsylvania circa 1905.Student body at Carlisle Indian Industrial School, Pennsylvania circa 1905.-National Archives and Records Administration-National Archives and Records Administration

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Bureau of Indian Affairs Bureau of Indian Affairs Indian Boarding SchoolsIndian Boarding Schools

““In 1971, 17 percent of Native American school-age children were In 1971, 17 percent of Native American school-age children were removed from their homes to attend Bureau of Indian Affairs (BIA) removed from their homes to attend Bureau of Indian Affairs (BIA) boarding schools, where they were oftentimes isolated from their boarding schools, where they were oftentimes isolated from their native families and instructed by teachers who had very little native families and instructed by teachers who had very little understanding and appreciation of the children’s native languages understanding and appreciation of the children’s native languages and traditions. In many of these boarding schools children were and traditions. In many of these boarding schools children were punished for speaking their native languages or practicing their punished for speaking their native languages or practicing their religious beliefs.”religious beliefs.”

-B. J. Jones-B. J. Jones

The Indian Child Welfare Act The Indian Child Welfare Act HandbookHandbook

Chilocco Indian SchoolChilocco Indian SchoolOklahomaOklahoma

321882 - 19801882 - 1980

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THE ALLOTMENT ERATHE ALLOTMENT ERA1880 - 19301880 - 1930

1887 - The General Allotment Act (“The Dawes Act”)1887 - The General Allotment Act (“The Dawes Act”)

Focused specifically on breaking up reservations by granting land Focused specifically on breaking up reservations by granting land allotments to individual Native Americans. allotments to individual Native Americans.

The reasoning was that if a person adopted non-Indian clothing and The reasoning was that if a person adopted non-Indian clothing and ways, and was responsible for a farm, ways, and was responsible for a farm, assimilation of American Indians assimilation of American Indians into the dominant population would be enhanced and tribes would into the dominant population would be enhanced and tribes would become self supporting on the reservationsbecome self supporting on the reservations. .

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THE ALLOTTMENT ERA, THE ALLOTTMENT ERA, continuedcontinued

• Tribal members were registered and documented on tribal rolls Tribal members were registered and documented on tribal rolls (called “base rolls”) and registered with the Bureau of Indian Affairs (called “base rolls”) and registered with the Bureau of Indian Affairs (sometimes referred to as “Dawes Rolls") (sometimes referred to as “Dawes Rolls") in order to establish in order to establish eligibility for land allotments.eligibility for land allotments.

• Tribal lands were often mountainous or desert and not able to Tribal lands were often mountainous or desert and not able to be used for agricultural purposesbe used for agricultural purposes..

• The government sold “surplus” Indian lands to non-Indians in The government sold “surplus” Indian lands to non-Indians in

violation of earlier treaties that held reservations in “trust” to Indians violation of earlier treaties that held reservations in “trust” to Indians only.only.

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THE INDIAN REORGANIZATION THE INDIAN REORGANIZATION ACTACT 1930 - 19501930 - 1950

1934 - The “Wheeler-Howard Act” 1934 - The “Wheeler-Howard Act”

– Attempt by the federal government to secure new rights for Attempt by the federal government to secure new rights for American Indians on reservations. American Indians on reservations.

– Main provisions were to Main provisions were to restore to management of tribal assets restore to management of tribal assets (mostly land); to prevent further depletion of reservation (mostly land); to prevent further depletion of reservation resources; to build a sound economic foundation for the people of resources; to build a sound economic foundation for the people of the reservations; and to return local self-government on a tribal the reservations; and to return local self-government on a tribal basis. basis. Tribal Councils were establishedTribal Councils were established. . Many tribes now Many tribes now have a Tribal Council and a Tribal Council Chairman rather have a Tribal Council and a Tribal Council Chairman rather than the traditional tribal “chief”. than the traditional tribal “chief”.

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NATIVE AMERICAN TERMINATION NATIVE AMERICAN TERMINATION ERA 1950 - 1970ERA 1950 - 1970

• U.S. policy toward American Indians during the 1950s and 1960s.U.S. policy toward American Indians during the 1950s and 1960s.

• Commissioner of Indian Affairs John Collier's policy of Commissioner of Indian Affairs John Collier's policy of cultural cultural pluralism pluralism and the ‘Indian New Deal” (1934-1945), resulted in and the ‘Indian New Deal” (1934-1945), resulted in legislation that sought to "emancipate the Indian" legislation that sought to "emancipate the Indian" by terminating all by terminating all federal ties and benefits to Indian communities and withdrawing federal ties and benefits to Indian communities and withdrawing federal support for tribal governments. federal support for tribal governments.

• 1953 - statutes called for the preparation of a final roll of tribal 1953 - statutes called for the preparation of a final roll of tribal members, the distribution of tribal assets to members, members, the distribution of tribal assets to members, and the and the removal of Indian lands from federally protected trust statusremoval of Indian lands from federally protected trust status. .

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SELF DETERMINATIONSELF DETERMINATION1970 to present1970 to present

• By the 1950’s, the tribes had lost By the 1950’s, the tribes had lost 50 percent of their children50 percent of their children..

• The The Child Welfare League of AmericaChild Welfare League of America (CWLA) through the (CWLA) through the Indian Adoption Indian Adoption Project Project (1958 – 1967), implemented a national project that removed children from (1958 – 1967), implemented a national project that removed children from Indian families for adoption by non-Indians. The CWLA later issued a public Indian families for adoption by non-Indians. The CWLA later issued a public apology for their actions.apology for their actions.

• The The Civil Rights Movement Civil Rights Movement of the 1960’s initiated a climate of social and political of the 1960’s initiated a climate of social and political change nationally.change nationally.

• The Indian Child Welfare Act drafting and hearings take place 1972-1976, and The Indian Child Welfare Act drafting and hearings take place 1972-1976, and ICWA passes in 1978ICWA passes in 1978..

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The Survival of a Culture and The Survival of a Culture and a Peoplea People

““Culturally, the chances of Indian Culturally, the chances of Indian survival are significantly reduced if survival are significantly reduced if our children, the only real means for our children, the only real means for the transmission of the tribal the transmission of the tribal heritage, are to be raised in non-heritage, are to be raised in non-Indian homes and denied exposure Indian homes and denied exposure to the ways of their People. to the ways of their People. Furthermore, these practices Furthermore, these practices seriously undercut the tribes' ability seriously undercut the tribes' ability to continue as self-governing to continue as self-governing communities. communities. Probably in no area Probably in no area is it more important that tribal is it more important that tribal sovereignty be respected than in sovereignty be respected than in an area as socially and culturally an area as socially and culturally determinative as family determinative as family relationships.“relationships.“

Mr. Calvin Isaac, Tribal Chief of the Mississippi Band of Mr. Calvin Isaac, Tribal Chief of the Mississippi Band of Choctaw Indians and representative of the National Choctaw Indians and representative of the National Tribal Chairmen's Association (1978 Hearings)Tribal Chairmen's Association (1978 Hearings)

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UnderstandinUnderstandin

g and g and Respecting Respecting History and History and Tradition in Tradition in Work with Work with American American

Indian TribesIndian Tribes

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Tribes are highly unique in their histories, traditions and Tribes are highly unique in their histories, traditions and cultural practices; however, some general statements can be cultural practices; however, some general statements can be made with regard to practices and viewpoints held in common made with regard to practices and viewpoints held in common

by the America Indianby the America Indianpopulation: population:

• Historic distrust of non-Indians and the dominant cultureHistoric distrust of non-Indians and the dominant culture• Life view is cyclical as opposed to linear, in keeping with nature, time is fluid 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 harmonyHolistic view of life, problems viewed as related to an overall lack of harmony• Spirituality, ancestors involved in their lives, reverence for sacredness of nature, Spirituality, ancestors involved in their lives, reverence for sacredness of nature,

places, the environmentplaces, the environment• Importance of the group above the individual, is seen as necessary to survival, and 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 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 transitoryValue age and wisdom (Elders) more than youth, appearance, the transitory• Respect, avoiding the appearance of being aggressive, interfering or meddlesomeRespect, avoiding the appearance of being aggressive, interfering or meddlesome• Tribal clan systems involve the concept of “extended family”, a child is the 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. responsibility of the tribe and the elders, the tribe is extended family. • Elders and extended family often assume responsibility for child rearing based upon Elders and extended family often assume responsibility for child rearing based upon

traditional tribal systemstraditional tribal systems• Child rearing practices involve “story-telling” and non-corporal forms of disciplineChild rearing practices involve “story-telling” and non-corporal forms of discipline• Pride, reluctance to ask for help or to ask questionsPride, reluctance to ask for help or to ask questions• Importance of protocol in social interaction, hospitality, sharing of resourcesImportance of protocol in social interaction, hospitality, sharing of resources• Women and children are honored and many tribes are matriarchalWomen and children are honored and many tribes are matriarchal

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The Indian Child Welfare The Indian Child Welfare ActAct

1901. Congressional Findings1901. Congressional Findings

• Establishes jurisdiction and the intent of the ActEstablishes jurisdiction and the intent of the Act• Defines and explains the unique relationship between tribes Defines and explains the unique relationship between tribes

and Congressand Congress• Describes the United States as a “trustee” in protecting Describes the United States as a “trustee” in protecting

Indian childrenIndian children• Addresses the jurisdiction of the States with regard to tribesAddresses the jurisdiction of the States with regard to tribes

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1902. Declaration of 1902. Declaration of PolicyPolicy

Statement that it is the policy of this Nation to protect Indian Statement that it is the policy of this Nation to protect Indian children and to promote the stability and security of American children and to promote the stability and security of American Indian families by:Indian families by:

– Establishes Establishes minimum Federal standards for removal of Indian minimum Federal standards for removal of Indian children from their familieschildren from their families;;

– Establishes Federal standards for the placement of Indian Establishes Federal standards for the placement of Indian children in culturally appropriate foster or adoptive homes children in culturally appropriate foster or adoptive homes and; and;

– Provides assistance to the tribes for the operation of family Provides assistance to the tribes for the operation of family services programsservices programs

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1903.1903. DefinitionsDefinitions

Key definitions includeKey definitions include::

TYPES OF CHILD CUSTODY PROCEEDINGS TO WHICH TYPES OF CHILD CUSTODY PROCEEDINGS TO WHICH ICWA APPLIES:ICWA APPLIES:

– Foster careFoster care• Any out-of-home care placement including relatives and Any out-of-home care placement including relatives and

non-relatives when the parent cannot have a child non-relatives when the parent cannot have a child returned upon demand (shelter)returned upon demand (shelter)

– Termination of Parental RightsTermination of Parental Rights– Pre-adoptive placementPre-adoptive placement– AdoptionAdoption

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DefinitionsDefinitions continuedcontinued

EXTENDED FAMILY MEMBER: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 sister-in-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.

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Definitions Definitions continuedcontinued

INDIAN CHILD:INDIAN CHILD:

Any unmarried person under the age of eighteen who is either:Any unmarried person under the age of eighteen who is either:

(a) A member of an Indian tribe, (a) A member of an Indian tribe, oror

(b) Is (b) Is eligibleeligible for membership* in an Indian tribe ANDfor membership* in an Indian tribe AND

is the biological child of a member of an Indian tribeis the biological child of a member of an Indian tribe

* * Tribal membership can only be determined by the tribe in which Tribal membership can only be determined by the tribe in which membership is claimed, and their decision is conclusivemembership is claimed, and their decision is conclusive..

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Definitions Definitions continuedcontinued

INDIAN CUSTODIAN:INDIAN CUSTODIAN:

means any Indian person who has legal custody of an Indian child 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 under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the physical care, custody, and control has been transferred by the parent of such child; parent of such child;

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Definitions Definitions continuedcontinuedINDIAN TRIBE:INDIAN TRIBE:

• Any Indian tribe, band, nation or other organized group or Any Indian tribe, band, nation or other organized group or community of Indians community of Indians recognized as eligible for the services recognized as eligible for the services provided to Indians by the Secretary [of the Interior] because of their provided to Indians by the Secretary [of the Interior] because of their status as Indians.status as Indians.

• Any Alaska Native Village as defined in 3 (c) of the Alaska Native Any Alaska Native Village as defined in 3 (c) of the Alaska Native Claims Settlement Act (85 Stat. 688,689), as amendedClaims Settlement Act (85 Stat. 688,689), as amended

• Eligible Tribes and Villages are published annually in Eligible Tribes and Villages are published annually in TheThe Federal Federal Register.Register.

• ICWA is not applicable to Native Hawaiians, Canadian “bands”, or ICWA is not applicable to Native Hawaiians, Canadian “bands”, or Central or South American tribes, including Mexican tribes, nor to Central or South American tribes, including Mexican tribes, nor to state-only recognized tribes, private tribal corporations or informal state-only recognized tribes, private tribal corporations or informal tribal groups tribal groups not formally recognized by the Department of the not formally recognized by the Department of the Interior.Interior.

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Definitions Definitions continuedcontinued

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

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Definitions, Definitions, continuedcontinued

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.

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Subchapter I – Child Subchapter I – Child Custody ProceedingsCustody Proceedings

1911. Jurisdiction1911. Jurisdiction

a) Exclusive jurisdiction of tribes over states (on reservation)

b) Transfer of judicial proceedings to the tribe by the state (off reservation) and declination by tribal court.

c) State court proceedings and tribe’s or Indian custodian’s right to intervene at any time in the proceeding

d) Full faith and credit to public acts, records, and judicial proceedings of Indian tribes by the states and the federal government

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1911 (c) State court 1911 (c) State court proceedings; interventionproceedings; 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.

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Child Custody ProceedingsChild Custody Proceedings1912. Pending Court Proceedings

a)a) Notice of proceedings and right to intervene must be by registered mail 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 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 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 Indian custodian cannot be determined, notice is sent to the Secretary of the Interior who has 15 days to respondInterior who has 15 days to respond

b)b) Appointment of counsel in indigency cases, and can also have counsel for Appointment of counsel in indigency cases, and can also have counsel for the childthe child

c)c) Right to examination of reports and other documentsRight to examination of reports and other documentsd)d) Remedial, rehabilitative and preventive measures must be Remedial, rehabilitative and preventive measures must be “active efforts”“active efforts”e)e) Foster Care Placement must be by Foster Care Placement must be by clear and convincing evidence, clear and convincing evidence, useuse

expert witnesses and show that continued custody by the parent or Indian 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 custodian is likely to result in serious emotional or physical damage to the childchild

f)f) TPR must be TPR must be beyond a reasonable doubtbeyond a reasonable doubt, , useuse expert witness(es), and expert witness(es), and show that continued custody by the parent or Indian custodian is likely to show that continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the childresult in serious emotional or physical damage to the child

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Child Custody ProceedingsChild Custody Proceedings1913. Voluntary Termination of Parental Rights

a) 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.

b) Any parent or Indian custodian may withdraw voluntary consent to foster care at any time and child must be returned

c) 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

d) 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)

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Child Custody ProceedingsChild 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.

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Child Custody ProceedingsChild Custody Proceedings

1915. Placement of Indian Children

Adoptive placements; preferences1. a member of the child's extended family2. other members of the Indian child's tribe3. 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 non-Indian 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

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Child Custody ProceedingsChild Custody Proceedings

1917. Tribal affiliation information for protection of rights from 1917. Tribal affiliation information for protection of rights from tribal relationship; application of subject of adoptive tribal relationship; application of subject of adoptive placement; disclosure by the courtplacement; disclosure by the court

Adult Indian adoptees Adult Indian adoptees shall be informed by the court shall be informed by the court (in which his (in which his or her adoption took place) or her adoption took place) of the tribal affiliation of the biological of the tribal affiliation of the biological parentsparents

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Child Custody ProceedingsChild Custody Proceedings

1919. Agreements between States and Indian Tribes1919. Agreements between States and Indian Tribes

• Tribes and States may enter into formal written agreements that Tribes and States may enter into formal written agreements that guide child welfare caseworkguide child welfare casework

• Such agreements may be revoked by either party with Such agreements may be revoked by either party with appropriate noticeappropriate notice

• The Department does not currently have any written state-to-The Department does not currently have any written state-to-nation agreements with Florida tribes.nation agreements with Florida tribes.

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Child Custody ProceedingsChild Custody Proceedings

Improper removal of child from custody; declination of Improper removal of child from custody; declination of jurisdiction; forthwith return of child; danger exceptionjurisdiction; forthwith return of child; danger exception

When any petitioner in an Indian child custody proceeding before a When any petitioner in an Indian child custody proceeding before a state court has improperly removed the child from custody of the state court has improperly removed the child from custody of the parent or Indian custodian or has improperly retained custody parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody, the after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over such petition and shall court shall decline jurisdiction over such petition and shall forthwith return the child to the parent or Indian custodian unless forthwith return the child to the parent or Indian custodian unless returning the child would place the child in immediate danger or returning the child would place the child in immediate danger or threat of such danger.threat of such danger.

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Child Custody Child Custody ProceedingsProceedings

• Nothing in ICWA shall be construed to prevent the Nothing in ICWA shall be construed to prevent the emergency emergency removal of a child to protect that child from danger and imminent removal of a child to protect that child from danger and imminent harmharm. .

• Actions should then be taken to bring the case into compliance Actions should then be taken to bring the case into compliance with ICWA provisions. with ICWA provisions.

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Federal Guidelines for Federal Guidelines for Implementation of ICWA by the Implementation of ICWA by the

StatesStates

Department of the Interior, Bureau of Indian AffairsDepartment of the Interior, Bureau of Indian Affairs

Guidelines for State Courts; Indian Child Custody ProceedingsGuidelines for State Courts; Indian Child Custody Proceedings

Published in the Federal Register November 26, 1979Published in the Federal Register November 26, 1979

The Secretary of the Interior did not promulgate administrative rules The Secretary of the Interior did not promulgate administrative rules for implementation of ICWA despite being ordered to do so by for implementation of ICWA despite being ordered to do so by Congress. Instead, suggested “guidelines” for implementation Congress. Instead, suggested “guidelines” for implementation were published .were published .

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Termination of Parental Termination of Parental Rights requires:Rights requires:

• Evidence Beyond a Reasonable DoubtEvidence Beyond a Reasonable Doubt• Active EffortsActive Efforts• Testimony by Expert Witness familiar with the child’s tribeTestimony by Expert Witness familiar with the child’s tribe

What is the applicability of Interstate Compact?What is the applicability of Interstate Compact?

• On-reservation - not a state and not subject to ICPC, but contact On-reservation - not a state and not subject to ICPC, but contact and coordination with the state agency is always recommendedand coordination with the state agency is always recommended

• Off-reservation – ICPC applies as for any other case Off-reservation – ICPC applies as for any other case

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Rights of Parents and Rights of Parents and CustodiansCustodians

• Indian and non-Indian parents have equal rights under ICWAIndian and non-Indian parents have equal rights under ICWA• Indian Custodians rights are very much the same as the parentIndian Custodians rights are very much the same as the parent• A Non-Indian Custodian has no rights outlined in ICWAA Non-Indian Custodian has no rights outlined in ICWA

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““Active Efforts”Active Efforts”

• Active efforts go beyond “reasonable efforts” and reflect not simply Active efforts go beyond “reasonable efforts” and reflect not simply an identification of the problems and proposed tasks and solutions, an identification of the problems and proposed tasks and solutions, but must demonstrate proactive casework and active engagement but must demonstrate proactive casework and active engagement with the family. with the family.

• This is casework that goes beyond merely referring for services to This is casework that goes beyond merely referring for services to arranging services and actively assisting families to engage those arranging services and actively assisting families to engage those services. services.

• There is an emphasis on culturally appropriate casework and There is an emphasis on culturally appropriate casework and working in collaboration with tribes to assure services.working in collaboration with tribes to assure services.

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Expert Witness in Indian Expert Witness in Indian CasesCases

• The Expert Witness in Indian cases is not necessarily an expert in 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 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 and the unique family and child rearing traditions and practices of the the Indian child’s tribeIndian child’s tribe..

• The Expert Witness testifies specifically regarding the family and The Expert Witness testifies specifically regarding the family and child rearing practices child rearing practices unique to the child’s tribeunique to the child’s tribe..

• Expert Witnesses allow the court to assess the child’s safety and Expert Witnesses allow the court to assess the child’s safety and well-being well-being within the context of tribal family traditions and practices within the context of tribal family traditions and practices that may not be those of the dominant culture. that may not be those of the dominant culture.

• An Expert Witness is required for (1) removal of a child from his/her 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 parent or Indian Custodian and for (2) TPR. They may appear by telephone if the court agrees.telephone if the court agrees.

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Cases in which ICWA Cases in which ICWA does notdoes not apply:apply:

• An award of custody pursuant to a divorce where one of the 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 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.to someone other than the one of the parents, ICWA will apply.

• A placement based upon an act which, if committed by an adult, A placement based upon an act which, if committed by an adult, would be deemed a crime (Department of Juvenile Justice cases).would be deemed a crime (Department of Juvenile Justice cases).

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MISSISSIPPI CHOCTAW MISSISSIPPI CHOCTAW INDIAN BAND v. HOLYFIELD, INDIAN BAND v. HOLYFIELD, 490 U.S. 30 (1989) 490 U.S. 30 (1989)

• Twins born off-reservation and voluntarily placed for adoption by Twins born off-reservation and voluntarily placed for adoption by their birth parents with a non-Indian family. Choctaw tribe their birth parents with a non-Indian family. Choctaw tribe intervenes and files a motion to vacate the adoption decree intervenes and files a motion to vacate the adoption decree pursuant to the ICWA. Adoption reversed by the U.S. Supreme pursuant to the ICWA. Adoption reversed by the U.S. Supreme Court three years after finalization of the adoption in Mississippi.Court three years after finalization of the adoption in Mississippi.

• The ruling addressed the issue of “domicile” on a reservation The ruling addressed the issue of “domicile” on a reservation stating that because the parents resided on the reservation, so did stating that because the parents resided on the reservation, so did the newborns, although the children had never physically been the newborns, although the children had never physically been there. there.

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MISSISSIPPI CHOCTAW INDIAN MISSISSIPPI CHOCTAW INDIAN BAND v. HOLYFIELD, continued: BAND v. HOLYFIELD, continued:

““This result is not altered by the fact that they were "voluntarily This result is not altered by the fact that they were "voluntarily surrendered" for adoption. Congress enacted the ICWA because of surrendered" for adoption. Congress enacted the ICWA because of concerns going beyond the wishes of individual parents, finding that concerns going beyond the wishes of individual parents, finding that the removal of Indian children from their cultural setting seriously the removal of Indian children from their cultural setting seriously impacts on long-term tribal survival and has a damaging social and impacts on long-term tribal survival and has a damaging social and psychological impact on many individual Indian children.”psychological impact on many individual Indian children.”

Determining Tribal Determining Tribal MembershipMembership

• Each tribe Each tribe has unique criteria for establishing membership has unique criteria for establishing membership and and only the tribe can make that determinationonly the tribe can make that determination..

• The amount of “blood quantum” (1/4, 1/8, 1/16, etc.) is The amount of “blood quantum” (1/4, 1/8, 1/16, etc.) is not a not a factor considered by all tribes when determining factor considered by all tribes when determining membershipmembership. Some tribes require a specific amount of blood . Some tribes require a specific amount of blood quantum, some do not use blood quantum as criteria at all.quantum, some do not use blood quantum as criteria at all.

• A tribe’s sole and final authority for determining membership A tribe’s sole and final authority for determining membership has been upheld by the United States Supreme Court in has been upheld by the United States Supreme Court in Santa Clara Pueblo v. Martinez 436 U.S. 49 (1978).Santa Clara Pueblo v. Martinez 436 U.S. 49 (1978).

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Santa Clara Pueblo v. Santa Clara Pueblo v. Martinez 436 U.S. 49 (1978)Martinez 436 U.S. 49 (1978)

• Julia Martinez was a member, living on-reservation, of the Santa Julia Martinez was a member, living on-reservation, of the Santa Clara Pueblo tribe in New Mexico. She married a Navajo and had Clara Pueblo tribe in New Mexico. She married a Navajo and had children. Membership in the Santa Clara tribe is through the children. Membership in the Santa Clara tribe is through the paternal line onlypaternal line only. The Martinez children are not eligible for . The Martinez children are not eligible for membership in the Santa Clara tribe despite spending their lives membership in the Santa Clara tribe despite spending their lives on the Santa Clara reservation and being the children of a Santa on the Santa Clara reservation and being the children of a Santa Clara woman and tribal member.Clara woman and tribal member.

• A tribe’s determination regarding membership is A tribe’s determination regarding membership is conclusiveconclusive. . Tribes have inherent authority to determine their own Tribes have inherent authority to determine their own membership and their decisions membership and their decisions are binding upon federal and are binding upon federal and state authoritiesstate authorities..

• Tribal enrollment guidelines include using Tribal enrollment guidelines include using base rollsbase rolls and and blood blood quantum quantum as eligibility requirements. Requirements can also as eligibility requirements. Requirements can also depend on whether the tribe requires depend on whether the tribe requires maternal or paternal lines of maternal or paternal lines of descent. descent.

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Tools for ICWA Compliance in Tools for ICWA Compliance in Florida…Florida…

• The Federal Register The Federal Register is published by the Office of the Federal is published by the Office of the Federal Register, National Archives and Records Administration (NARA), Register, National Archives and Records Administration (NARA), which is the official daily publication for rules, proposed rules, and which is the official daily publication for rules, proposed rules, and notices of Federal agencies and organizations, as well as notices of Federal agencies and organizations, as well as executive orders and other presidential documents. The web site executive orders and other presidential documents. The web site is: is: www.archives.gov

• Department of the Interior, Bureau of Indian Affairs Department of the Interior, Bureau of Indian Affairs publications regarding ICWA:publications regarding ICWA:– Federal Guidelines for Implementation (1979)Federal Guidelines for Implementation (1979)– Indian Entities Recognized and Eligible to Receive Services Indian Entities Recognized and Eligible to Receive Services

from the United States Bureau of Indian Affairs from the United States Bureau of Indian Affairs – Indian Child Welfare Act: Receipt of Designated Tribal Agents Indian Child Welfare Act: Receipt of Designated Tribal Agents

for Service of Noticefor Service of Notice

• Notice must go to the Notice must go to the Designated Tribal Agent Designated Tribal Agent for ICWA for for ICWA for legal sufficiencylegal sufficiency

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Florida Statutes, Florida Florida Statutes, Florida Administrative Code and DCF Administrative Code and DCF Operating Procedure Operating Procedure

• Section 39.012, Florida StatutesSection 39.012, Florida Statutes– Defers to federal authority and authorizes the Department to Defers to federal authority and authorizes the Department to

adopt rules for implementationadopt rules for implementation

• Florida Administrative Code Chapter 65C-28.013Florida Administrative Code Chapter 65C-28.013– Child Protective Investigators shall determine Child Protective Investigators shall determine at the onset of at the onset of

each child protective investigation each child protective investigation if the children are if the children are American Indian or Alaskan Native children as defined by the American Indian or Alaskan Native children as defined by the Act.Act.

• CF-OP No. 175-36 (1998)CF-OP No. 175-36 (1998)– ““Reports and Services Involving Indian Children”Reports and Services Involving Indian Children”

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Forms , Suggested Formats Forms , Suggested Formats and Guidance for Establishing and Guidance for Establishing Eligibility for the Protections Eligibility for the Protections of ICWA:of ICWA:

ICWA resources are available online at ICWA resources are available online at Florida’s Center for the Florida’s Center for the Advancement of Child Welfare Practice hereAdvancement 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 onCF-FSP 5323 and CF-FSP 5323S (Spanish) are also on DCF Forms DCF Forms onlineonline

• Sample notification/inquiry letter to TribeSample notification/inquiry letter to Tribe• Sample notification/inquiry letter to BIASample notification/inquiry letter to BIA

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ICWA and ASFAICWA and ASFA• ICWA compliance should not impact ASFA permanency time frames if ICWA compliance should not impact ASFA permanency time frames if

properly applied properly applied at the initiation of the caseat the initiation of the case. Failure to apply ICWA . Failure to apply ICWA guidelines and subsequent “back-tracking” to bring the case into compliance guidelines and subsequent “back-tracking” to bring the case into compliance cancan impact timeliness of permanency, including lengthy appeals. impact timeliness of permanency, including lengthy appeals.

• NeverNever assume assume a child has no Indian ancestry. a child has no Indian ancestry. If you do not ask the If you do not ask the question, you cannot know.question, you cannot know.

• ICWA eligibility often has very little to do with physical appearance, racial ICWA eligibility often has very little to do with physical appearance, racial identification, ethnicity, residence, or similar factorsidentification, ethnicity, residence, or similar factors..

• Any child involved in a child custody investigation or proceeding should be Any child involved in a child custody investigation or proceeding should be questioned regarding possible American Indian ancestry and the information questioned regarding possible American Indian ancestry and the information documented in the Florida Safe Families Network.documented in the Florida Safe Families Network.

• If American Indian ancestry is claimed, the case should be treated as an 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 ICWA case until such time as a negative response is received from the tribe or the court issues a finding to the contrary.or the court issues a finding to the contrary.

ICWA Eligible?ICWA Eligible?

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ICWA and MEPAICWA and MEPA

““The relationship between Indian tribes and the federal government is The relationship between Indian tribes and the federal government is a “political” relationship between two [sovereign] nations, not a a “political” relationship between two [sovereign] nations, not a relationship based on the racial classification of Native Americans. relationship based on the racial classification of Native Americans.

The Supreme Court has recognized that Congress can treat Native The Supreme Court has recognized that Congress can treat Native Americans differently from other racially distinct groups…because Americans differently from other racially distinct groups…because of the unique relationship between the tribes and the government.”of the unique relationship between the tribes and the government.”

--The Indian Child Welfare Act HandbookThe Indian Child Welfare Act Handbook

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Tribal AgreementsTribal Agreements• Always determine first if there is an existing Tribal Agreement Always determine first if there is an existing Tribal Agreement

between the state and the tribe that will guide child welfare between the state and the tribe that will guide child welfare procedure. There may also be existing procedural guidelines in procedure. There may also be existing procedural guidelines in place for contacts on the reservations or for handling cases place for contacts on the reservations or for handling cases involving Indian children. involving Indian children.

• We have We have no jurisdictionno jurisdiction on Indian lands or reservations; however, on Indian lands or reservations; however, we do have a working relationship with the we do have a working relationship with the Seminole Tribe of FloridaSeminole Tribe of Florida regarding child protective investigations and case management on regarding child protective investigations and case management on their reservations.their reservations.

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American Indian/Alaskan American Indian/Alaskan NativeNativeStatistics from the 2010 U.S. Statistics from the 2010 U.S. CensusCensusFlorida is one of fifteen states with more than 100,000 American Indian Florida is one of fifteen states with more than 100,000 American Indian

and Alaska Native residents as of the 2010 Census. and Alaska Native residents as of the 2010 Census.

The above fifteen states are California, Oklahoma, Arizona, Texas, The above fifteen states are California, Oklahoma, Arizona, Texas, New York, New Mexico, Washington, North Carolina, Florida, New York, New Mexico, Washington, North Carolina, Florida, Michigan, Alaska, Oregon, Colorado, Minnesota and Illinois. Michigan, Alaska, Oregon, Colorado, Minnesota and Illinois.

American Indian/Alaskan Natives comprise 0.9% of the overall American Indian/Alaskan Natives comprise 0.9% of the overall population in Florida. This number references those census population in Florida. This number references those census respondents who reported being American Indian/Alaskan Native respondents who reported being American Indian/Alaskan Native either as one race alone or in combination with another race.either as one race alone or in combination with another race.

Florida’s population in 2010 was 18,801,310. The number of American Florida’s population in 2010 was 18,801,310. The number of American Indian/Alaskan Natives reported living in Florida is 162, 562, either Indian/Alaskan Natives reported living in Florida is 162, 562, either alone or in combination with another race.alone or in combination with another race.

- U.S. Census Bureau- U.S. Census Bureau

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Florida’s Federally Recognized Tribes

• Florida’s Florida’s only two federally recognized tribes only two federally recognized tribes are the are the Seminole Tribe of FloridaSeminole Tribe of Florida and theand the Miccosukee Tribe of Indians of FloridaMiccosukee Tribe of Indians of Florida. . They are descended from Muscogee (“Creek”) They are descended from Muscogee (“Creek”) Indians who migrated to Florida from Georgia and Alabama in the 1700s, and are not Indians who migrated to Florida from Georgia and Alabama in the 1700s, and are not historically indigenous to Florida.historically indigenous to Florida.

• Florida’s original indigenous tribes at the time of European contact no longer exist. Florida’s original indigenous tribes at the time of European contact no longer exist.

• Reservations in Florida are the six Reservations in Florida are the six Seminole reservationsSeminole reservations at at Hollywood, Big Cypress, Hollywood, Big Cypress, Fort Pierce, Brighton, Immokalee, and TampaFort Pierce, Brighton, Immokalee, and Tampa, , andand

• The three The three Miccosukee reservationsMiccosukee reservations on the on the Tamiami Trail, Tamiami Trail, onon Alligator Alley (SR 84) Alligator Alley (SR 84) and and on on Krome Avenue Krome Avenue in Miamiin Miami. .

• The Seminole and Miccosukee comprise less than 5 percent of the American Indian The Seminole and Miccosukee comprise less than 5 percent of the American Indian population residing in Florida . There are approximately 3600 enrolled members the population residing in Florida . There are approximately 3600 enrolled members the Seminole Tribe of Florida and approximately 600 enrolled in the Miccosukee Tribe.Seminole Tribe of Florida and approximately 600 enrolled in the Miccosukee Tribe.

• A third tribe, the A third tribe, the Poarch Band of Creek Poarch Band of Creek who have a reservation located in who have a reservation located in Atmore, Atmore, AlabamaAlabama, have tribal members living in the panhandle of Florida, have tribal members living in the panhandle of Florida..

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The National Indian Child The National Indian Child Welfare AssociationWelfare 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 Alaskan Native Native Mother Mother and and InfantInfant

Nome, Nome, AlaskaAlaska

Circa 1915Circa 1915

--National Archives National Archives and Records and Records AdministrationAdministration

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Presentation prepared by:Presentation prepared by:

Linda D. Johns, MSWLinda D. Johns, MSW

Senior Management Analyst Supervisor/Federal Policy and Program Senior Management Analyst Supervisor/Federal Policy and Program Indian Child Welfare Act Program Manager and Tribal LiaisonIndian Child Welfare Act Program Manager and Tribal Liaison

Office of Child WelfareOffice of Child Welfare

1317 Winewood Boulevard1317 Winewood BoulevardTallahassee, Florida 32399Tallahassee, Florida 32399

(850) 717-4664(850) 717-4664Linda_D_Johns@dcf.state.fl.usLinda_D_Johns@dcf.state.fl.us

Property of the State of FloridaProperty of the State of Florida

Department of Children and Department of Children and FamiliesFamilies