Basics of the Indian Child Welfare Act Poverty Law- University of St. Thomas School of Law Katalina Jiménez Legal Aid Society of Minneapolis February 16, 2009

Why Necessary? 1 of 4 Indian children adopted into non-Indian homes Dr. Westemeyer study: Indian adolescents in non-Indian homes psychiatric issues Mass extermination of Indian cultural by removing the children

Why treat Indian children any different? The United States Supreme Court held that distinct congressional treatment of Indians is not a prohibited racial classification. The Court held that deferential treatment provided under Congressional acts is allowed by the “special relationship” that the federal government has established with Indian tribes. The special relationship is derived from the separate constitutional status of Indian tribes under the United States Constitution. Morton v. Mancari, 417 U.S. 535, 551-554 (1974).

Not based on racial preference Based on sovereign status of the tribe & membership to the nation/tribe It’s Federal and State law

Basic Law & Resources Indian Child Welfare Act of 1978, 25 U.S.C. §1901-1963 (ICWA). Minnesota Indian Family Preservation Act, Minn. Stat. §§260.751-260.835 (MIFPA). BIA Guidelines for State Courts, Indian Child Custody Proceedings, 44 Fed. Reg. 67584-67595 (November 16, 1979). Tribal State Agreement as Amended in 2007, MN DHS Website(http://edocs.dhs.state.mn.us/lfserver/Legacy/DHS-5022-ENG) Minnesota Department of Human Services Social Services Manual Section XIII-3500 on Indian Children

Does ICWA apply? ICWA applies to child custody proceedings where court “knows or has reason to know that an Indian child is involved”- ICWA §1903(1) & §1912(a)

Is the child and “Indian child”? “Indian child” is “any unmarried person who is under 18 and is either a member of a tribe; or is eligible for membership is an Indian tribe and is the biological child of a member of an Indian tribe” ICWA, §1903(4). “Indian child” is “an unmarried person who is under 18 and is: a member of an Indian tribe; or Eligible for membership in an Indian tribe.

The Tribe determines whether a child is a member or eligible for membership. §1903(5). A tribal determination that a child is a member or eligible for membership in that Tribe is conclusive evidence that a child is an Indian child. In re Welfare of SNR, 617, N.W.2d 77 (Minn.App. 2000).

Is this a applicable proceeding? Child Custody Proceedings: CHIPS cases Voluntary placements TPR Adoptions Third Party custody matters (AKH, 502 N.W.2d 790 (Minn. 1993). Certain delinquencies (truancy, runaway)

Does NOT apply… Custody proceedings between parents Placements based on acts that if committed by an adult would be a crime. (this excludes status offenses, truancy, runaway, curfew, smoking, which used to be called “status offenses”)

Procedural Requirements Notice to parents, Indian custodians and tribes within 10 days Transfer to tribal court jurisdiction Tribes have right to intervene in state court Parents and Indian custodian have right to legal counsel

more requirements… Qualified Expert Witness testimony required before out of home placement or TPR Higher burden of proof for TPR- beyond a reasonable doubt Active Efforts Voluntary placement must be in writing

Mandatory Placement Priorities Adoptive Placement Preferences, §1915(a) Member of child’s extended family; Other member of the Indian child’s Tribe; or Other Indian family.

Foster Care/ pre-adoptive placement Preferences Member of Indian child’s extended family; Foster home licensed, approved or specified by child’s Tribe; Indian foster home licensed or approved by an authorized non-Indian licensing authority; 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.