Tribal/State Agreements Under ICWA Kandis Martine Assistant Attorney General Navajo Nation Department of Justice October 27, 2017

25 U.S.C. § 1919 The ICWA authorizes Indian tribes and states to enter into agreements aimed at furthering the purposes of ICWA. Such agreements can go a long way to create working relationships between tribes and states.

Navajo Nation For the Navajo Nation, creating ICWA agreements with the states opened up those relationships. However, creating the agreements was not easy because the Navajo reservation is located in three states, AZ, NM and UT. Therefore, three agreements had to be created.

Agreements Maybe this could have been easy by creating one agreement and add the respective state to the title, but this could not be done. Each state had different agendas regarding what they would agree to. Therefore, it was going to take time to negotiate with the three states.

Agreements cont. In addition, with having to work with three states, the Nation has two separate offices that had to be addressed in the agreements. The Navajo Children and Family Services Program is responsible for state cases. The Department of Family Services is responsible for on-reservation cases.

The Navajo Nation established its first ICWA agreement with NM on Sept The Navajo Nation established its first ICWA agreement with NM on Sept. 17, 1985. Then came UT on May 5, 1996 and finally AZ, on Oct. 17, 1997. The agreements were somewhat general and adopted a lot of the language from the ICWA. Cooperation and coordination were emphasized in the agreements.

New Agreements The agreements were amended once: in 2007 for NM and UT; and 2014 for AZ. We began discussions on amending the agreements to be consistent with the regulations at the beginning of this year and have completed a first draft for all three.

Negotiating As with any negotiations it can be difficult depending on who is on the other side. In this case, AZ is the state that has been the most difficult. The people at the table can be accommodating but this can only go so far, especially when these individuals are not the final approvers.

Negotiating Cont. If you can, try to get the representatives with final authority at the table to negotiate. If this can’t be done, it will take longer to get an agreement completed. For example, the 2014 amendment for AZ started around the same time as NM and UT’s but took almost ten years to complete.

Arizona Even right now we are still waiting to have a final approved document from AZ and we provided what we believed was the final agreement in the Spring of this year. We appreciate working with the legal representative from AZ but she is not the final authority on the agreement.

New Mexico and Utah The amendments for NM and UT are more extensive than AZ, as we have agreed to include more language directly from the regulations. Both states have the right people at the table and to this point we have had very few objections to adding language recommended by the Nation.

Regulations Both NM and UT are so much more agreeable to adding the language from the regulations into the agreements. At least for NM they stated it would be preferred because they believe their workers will look to the agreement more than the regulations.

Unique Provisions All three states have agreed to add a provision regarding the Interstate Compact for the Placement of Children (ICPC) in regards to placements on the reservation. ICPC causes delays in cases, which makes it harder to initiate a change of placement. ICPC agreements are between states and not tribes.

ICPC For example, in a NM case, placement is identified in AZ on the Navajo reservation. Transfer is not an option, i.e. a parent is objecting. NM can do the placement without ICPC. For Navajo this made sense because an ICPC request is submitted to the Nation for the home study and monitoring after placement.

Other Provisions Quarterly meetings with the states to provide updates and discuss any issues with cases. This has been a great way to resolve issues. The Nation can agree to a placement but that can be revoked at anytime. Each agree to accept home studies as meeting each other’s standards. Cross training.

Conclusion Like any other agreement do what works best for your client. The Nation has been working with an ICWA agreement for over thirty years. The agreements have been helpful because we have been able to hold the states accountable under the agreements in some of our more contested ICWA cases.

Conclusion Cont. In addition, these agreements do help the discussions begin with the states. Even though AZ is difficult to work with in general, the people we’ve created relationships with while working on the agreement have been beneficial. For instance, assisting one of their offices understand the ICWA.

Questions? Contact: P.O. Box 2010 Window Rock, AZ 86515 (928) 871-6935 kmartine@nndoj.org