Attorney Paul Stenzel Stenzel Law Office, LLC 24 th Annual Coming Together of the Peoples Conference Madison, WI March 19, 2010

ICWA OVERVIEW  Indian Child Welfare Act, 25 USC §§ 1901 et seq.  Enacted in  Congressional response to wholesale removal of Indian children from their homes.

ICWA OVERVIEW  ICWA gives tribes several tools to influence the outcome of the child custody proceedings in state courts.

ICWA OVERVIEW  Transfer of state court child custody cases to tribal court. 25 USC § 1911(b).  Right to intervene in state court proceedings. 25 USC § 1911(c).  Placement preferences. 25 USC § 1915.

ICWA OVERVIEW  Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.  25 USC sec. 1912(d)

ICWA OVERVIEW  Special provisions for voluntary TPR:  Any consent given within 10 days of birth is not valid. 25 USC §  Consent only valid if executed in writing and recorded before a judge. 25 USC § 1913.

SAFE HAVEN OVERVIEW  Started as a community program in 1998 in Alabama after murder of an infant by mother and grandmother.  District Attorney agreed to pilot program.  Secret Safe Place for Newborns.

SAFE HAVEN OVERVIEW  Texas was first state to enact a law in June, Signed into law by then Governor George Bush.  Swept quickly through about 40 states by  By end of 2008, all 50 states had some form of Safe Haven laws on the books.

SAFE HAVEN OVERVIEW  Critics:  Wrong to deprive child of his or her genetic and family history.  Encourages abandonment.  Disregard for fathers’ rights.

SAFE HAVEN OVERVIEW  Summary:  Parent can relinquish child at a designated spot:  Police station  Fire station  Hospital  Usually within a short time after birth, three to 30 days. Some longer.

SAFE HAVEN OVERVIEW  Anonymity of parent/relinquisher essentially guaranteed.

SAFE HAVEN OVERVIEW  Four states make some recognition of tribal issues:  Montana: requires reasonable effort to be made to discover whether the child has Indian affiliation.

SAFE HAVEN  New Mexico: Safe Haven does not abridge ICWA rights. Person leaving child shall be asked about Indian heritage, but is not required to answer.  South Dakota: ICWA will be given “due regard.”

SAFE HAVEN OVERVIEW  Wisconsin Safe Haven: Wis. Stat. § Unique in that it permits release of identity of child to tribe if the child is the subject of a pending tribal court proceeding.

SAFE HAVEN - ICWA  All states permit relinquishment within 10 days of birth. Such a relinquishment and subsequent TPR in violation of 25 USC §  TPRs done under Safe Haven are not done by the parent on the record before the judge, a violation of 25 USC § 1913.

SAFE HAVEN - ICWA  Fundamental conflict:  Tribe needs to know identity of child to verify eligibility for membership.  Anonymity is the crux of Safe Haven under the theory that if parent can walk away with no strings, infant less likely to be harmed.

SAFE HAVEN - ICWA  Ideas for resolving the conflict:  Focus on hospital “relinquishments.”  Some Indian parents (Holyfield) will not want to be involved with Tribe. Need assurances that identity will be kept limited.

SAFE HAVEN - ICWA  One state publishes notice of the relinquishment in the county where it occurred once a week for four weeks.  Notice to tribes within the state or within 200 miles.

SAFE HAVEN - ICWA  Issues:  ICWA mentions parents’ desire to remain anonymous in 25 USC § 1915(b). Matter of Baby Girl Doe, 865 P.2d 1090 (Mont. 1993).  Parents’ rights vs. tribe’s interests.

SAFE HAVEN OVERVIEW Attorney Paul Stenzel Stenzel Law Office, LLC