1. The Indian Child Welfare Act: History, Purpose and Application
Attorney Paul Stenzel
April 23, 2018
Marquette Law School

2. Part I: History and Purpose of the Indian Child Welfare Act
Part II: Application of the Act
Part III: Major Cases
Part IV: Questions & Issues

3. History & Purpose
From the late 19th century to the mid 1970s, Indian families were subjected to various forces which negatively impacted the family unit:
Allotment Act
Assimilation
Termination

4. Carlisle Indian School ca. 1900

5. History & Purpose
By the 1960s there was a recognition that Indian families were being broken apart at an alarming rate due to state social service departments removing children and placing them in non-Indian homes.

6. History & Purpose
Studies in 1969 and 1974 showed that 25% to 35% of all Indian children had been separated from their families and placed in adoptive families, foster care, or institutions.

7. History & Purpose
The same studies found that in the State of Minnesota one in eight Indian children under the age of 18 was in an adoptive home, and during nearly one in every four infants under one year of age was placed for adoption.

8. History & Purpose
In Wisconsin the risk of being separated from their children was 1,600% greater for Indians.

9. History & Purpose
90% of the Indian placements were in non-Indian homes.

10. History & Purpose
In South Dakota, 40 percent of all adoptions by the State were of Indian children, yet they made up only 7% of the population.

11. History & Purpose Chairman Calvin Isaac, at ICWA Senate Hearings:
“One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by nontribal government authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and childrearing.”

12. History & Purpose Chief Isaac (cont’d):
“Many of the individuals who decide the fate of our children are at best ignorant of our cultural values, and at worst contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian child.”

13. History & Purpose Chief Isaac:
“Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People.”

14. History & Purpose
The congressional hearings demonstrated the tremendous harm that had come to Indian families, tribes and children. The ICWA was passed to prevent it from happening in the future.

15. History & Purpose
In addition, it is clear that Congress' concern over the placement of Indian children in non-Indian homes was based in part on evidence of the detrimental impact on the children themselves of such placements outside their culture. …
Mississippi Choctaw Band v. Holyfield, 490 U.S. 30, (1989)

16. History & Purpose
"[r]emoval of Indian children from their cultural setting seriously impacts a long-term tribal survival and has damaging social and psychological impact on many individual Indian children." Senate Report, at 52.
Holyfield, 490 U.S. at 51.

17. History & Purpose
“Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.”
Holyfield, 490 U.S. at 34 (quoting, Chief Isaac, hearings in front of the Lands of the House Committee on Interior & Insular Affairs, 95th Cong., 2d Sess., at 193 (1978)).

18. History & Purpose
Without ICWA, the best interest of the child standard, as defined by the mainstream culture, fails to take into account Tribes’ unique culture.
The ICWA, by providing for intervention and an order of placement preferences, essentially added new elements to the best interest of the child standard which recognize tribal interests.

20. Part II: Application of the Act
What types of actions does the Act apply to?
State court
CHIPs (or equivalent)
TPR
Status crimes for juveniles
Out of home placements where parents cannot have the child back on demand
NOT:
Divorces
Other JD proceedings involving “crimes”

21. Application of the Act
Act applies to proceeding where grandparents are seeking guardianship. In re Guardianship of J.C.D., 2004 S.D. 96, 686 N.W.2d 647, (S.D. 08/25/2004)
A “child custody proceeding” includes intra- familial disputes between the parents and maternal grandmother who is the current guardian of the children. In re A.K.H., 502 N.W.2d 790 (Minn. 1993).

22. Application of the Act The Act defines and “Indian child” as either:
A member of a federally recognized Indian tribe; OR
Eligible for membership and is the biological child of a member of a Tribe.

23. Application of the Act Substantive provisions:
Indian tribes have exclusive jurisdiction for cases arising on the Reservation.

24. Application of the Act
For cases arising off the reservation, the Tribe or a parent can seek to have the case transferred to Tribal court subject to exceptions:
Good cause
Objection by parent
Declination by tribal court (or tribe does not have a tribal court).

25. Application of the Act Wisconsin Statute on “Good cause”:
If the child is 12 or older and objects
Tribal court too inconvenient for evidence, etc.
The Tribe asks for transfer after 6 months (with safe harbor exception).

26. Application of the Act
The Tribe, rather than seeking transfer, can intervene at any time and participate in proceedings as a party.

27. Application of the Act
In any involuntary state court proceeding, the Tribe must be given notice of the action under specific procedures.

28. Application of the Act
The party bringing the action must show that “active efforts” have been made to prevent the break up of the Indian family.

29. Application of the Act
Under Wisconsin law, active efforts defined to include specific steps:
Keeping the tribe involved
Involving extended family
Comprehensive assessment of family
Community resources offered
Many others; listed in Wis. Stat (4)(g)

30. Application of the Act State shows by C&C evidence
Out of home placement may only occur if the following are met:
State shows by C&C evidence
that continued custody by parent is likely to result in serious emotional or physical damage to the child
Qualified expert witness testimony

31. Application of the Act TPR may not be ordered without: BRD
That continued custody by parent is likely to result in serious emotional or physical damage
Qualified expert witness testimony required

32. QEW
Federal Act did not define QEW. Under WI statute, it means a person who is any of the following (2 of 4 listed):
1. A member of the Indian child's tribe recognized by the Indian child's tribal community as knowledgeable regarding the tribe's customs relating to family organization or child-rearing practices.
2. A member of another tribe who is knowledgeable regarding the customs of the Indian child's tribe relating to family organization or child-rearing practices.
State law also adds QEW order of preference

33. Application of the Act Voluntary placements / TPRs must be:
executed in writing and
recorded before a judge of a court of competent jurisdiction
accompanied by the presiding judge's certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent or Indian custodian.

34. Application of the Act
25 USC 1913(a) (cont’d)
Any consent given prior to, or within ten days after, birth of the Indian child shall not be valid.

35. Application of the Act
25 USC § 1914 creates a cause of action for a tribe to invalidate a proceeding allegedly in violation of 1911, 1912, and 1913 of this title.

36. Application of the Act
Foster care or pre-adoptive placement order of preference
a member of the Indian child's extended family;
a foster home licensed, approved, or specified by the Indian child's tribe;
an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
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.

37. Application of the Act Adoptive placement order of preference:
(1) a member of the child's extended family;
(2) other members of the Indian child's tribe; or
(3) other Indian families.

38. Application of the Act
The Indian child’s tribe may determine it’s own placement order of preference which must be honored by the Court.

39. Application of the Act 25 USC § 1915(c) (cont’d)
Where appropriate, the preference of the Indian child or parent shall be considered: Provided, That where a consenting parent evidences a desire for anonymity, the court or agency shall give weight to such desire in applying the preferences.

40. Application of the Act
The Tribe's right to enforce statutory preference for adoptive placement of Indian children prevailed over parent statutorily recognized interest in anonymity. In re Baby Girl Doe, 262 Mont. 380, 865 P.2d 1090 (1993).

41. Major cases
Mississippi Choctaw v. Holyfield, 490 U.S. 30 (1989) – U.S. Supreme Court reversed an adoption where the parents were residing on the Reservation but left to have the child and place it for private adoption in an effort to avoid the Act.

42. Major Cases Holyfield discussion Other facts
Group rights v. individual
Dissent
Rest of the story

43. Major cases
Adoptive Couple v. Baby Girl, 570 U.S. _____ , 133 S. Ct. 2552, 186 L. Ed. 2d 729 (2013).
U.S. Supreme Court ruled that certain provisions of the Act did not apply where the Indian father had never had custody or care of the child.

44. Major Cases Adoptive Couple v. Baby Girl, Difficult facts
Existing Indian Family doctrine
What behavior has been incentivized?
Rest of the story

45. OTHER TOPICS
Applying the Act in practice
Current efforts to invalidate the Act
Questions

46. Additional resources
(National Indian Child Welfare Association)
The Indian Child Welfare Act Handbook, B.J. Jones, Family Law Section, ABA
ICWA regulations: 81 FRE (June 14, 2016); 25 CFR part 23.
Guidelines for Implementing the Indian Child Welfare Act, December 2016.