1. COLOR BLINDNESS OR CULTURALLY CONSCIOUS? COLOR BLINDNESS OR CULTURALLY CONSCIOUS? National Association of Counsel for Children Conference San Diego, California Tracy Mills and Martha Pierce August 31, 2011 ICWA vs. MEPA-IEP

2. Part I: ICWA: Culturally Conscious

4. FOUR TYPES OF CHILD CUSTODY PROCEEDINGS

5. Four Types of Child Custody Proceedings foster care placement which shall mean any action removing an the child returned upon demand, but where parental rights have not been terminated; C HILD CUSTODY PROCEEDING SHALL MEAN AND INCLUDE, 1. preadoptive placement which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; 2. 3. 4. termination of parental rights which shall mean any action resulting in the termination of the parent-child relationship; and adoptive placement which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.

6. 25 U.S.C.A § 1903

7. Indian Child: A Political Definition I NDIAN CHILD means any unmarried person who is under age eighteen and is either a member of an Indian tribe OR is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe; 25 U.S.C.A. § 1903 (4)

8. Basic Components of ICWA E XCLUSIVE VS. C ONCURRENT J URISDICTION

9. EXCLUSIVE JURISDICTION WHEN THE INDIAN CHILD... – Resides or is domiciled on the reservation; or – Is a ward of the tribal court. – Parent who resides on reservation cannot subvert this requirement by fleeing reservation to give birth or to relinquish.

10. Concurrent (“presumptive”) Jurisdiction Everything else

11. CONCURRENT JURISDICTION Tribe has right to request transfer to tribal court only for foster care or terminations. Transfer required absent good cause.

12. Reasons not to transfer: No tribal court; A parent objects; Tribe declines; Good cause.

13. 1.Parent vetoes transfer. 2.Advanced stage of proceedings. 3.Tribe has not court. 4.BIA Guidelines suggests child has a voice. 5.Forum non conveniens arguments.

14. 25 U.S.C.A. § 1911 (c)

15. The Heart of ICWA

16. Foster or Preadoptive Placements Least restrictive. Most approximates a family. Meeting “special needs.” Within reasonable proximity to child’s home.

17. Foster or preadoptive placements 1.Member of extended family (whether or not Native American). 2.Tribe authorized foster home. 3.Licensed Indian foster home (whether or not of child’s tribe). 4.Tribe-authorized institution.

18. Adoptive Placements... 1.Extended family member. 2.Tribal member. 3.Other Indian families.

19. Preferences may be modified Per tribal resolution; Per child’s preference; Per parent’s preference; Where parent requests anonymity.

20. QUALIFIED EXPERT WITNESS, HIGHER STANDARD OF PROOF To support one finding: “that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”

21. ACTIVE vs REASONABLE EFFORTS

22. ICWA categorizes politically, not racially or culturally. a child can be 100% genetic Native American and not be an "Indian Child." a child can be 100% genetic non-Native American and be an "Indian Child."

23. ICWA’s IMPLICIT VALUES Collective rights, child has right to belong. Sovereignty, self-determination. “Best Interests” code for middle class values. Values of culture, tribe best passed on within tribe.

24. Where Child is Native American, but not politically Native American. What is the default position?

25. Part II: MEPA-IEP MULTI-CULTURALISM

26. MEPA & MEPA-IEP MEPA = Multiethnic Placement Act. 42 USC Sec. 5115a (1994) (repealed— exception swallowed the rule) MEPA-IEP = Interethnic Placement Act. 42 USC Sec. 1996b (1996)

27. MEPA I, 42 U.S.C. Sec. 1994 (1994) (repealed). Applies to foster care or adoption. Prohibits categorical denial or placement based “solely” on race, color, or national origin. Permits consideration of cultural, ethnic, or racial background of child and cultural capacity of care giver.

28. MEPA-IEP, 42 U.S.C. Sec. 1996b (1996) Applies to foster care or adoption. Prohibits discrimination of care giver on race, color, or national origin of child or parent. Prohibits denial or delay of placement based on race, color or national origin. Noncompliance can result in agency fine or civil rights action

29. Part III: Same Child Opposing Best Interests

30. MEPA-IEP vs. ICWA ICWA Applies to foster care, adoption. Enforcement = possible reversal. Culturally conscious. MEPA-IEP Applies to foster care, adoption. Enforcement includes agency sanctions, civil rights action. Color-blind application.

31. ICWA VALUES Child presumed to have cultural needs. Child is part of collective. Child’s placement is in part reparative. Racial, cultural categorization inevitable. Child needs role model from same racial/ethnic group. Extended family model More deliberative.

32. MEPA-IEP VALUES Swift permanency in nuclear family model. Race blind individualism. Child’s needs trumps notions of fairness. Child should not be permanently categorized. Persons of all races presumed to be able to care for children of all races.

33. Part IV: The Voice of the Child. How ICWA, MEPA-IEP, ABA, NACC listen to the Child.

34. ICWA ALLOWS FOR THE CHILD’S VOICE Requiring appointment of counsel contemplates... – The Child’s interests does not always track the Tribe’s. – The Child is a party. – The Child’s voice should be heard. – The Child is a fully formed person.

35. ICWA PLACEMENT PREFERENCES and THE CHILD’s VOICE. No age limit. No need for preference to be verbalized. Child needs must be accommodated. Child’s need for home-like place. Child’s need for place near home.

36. Jurisdictional Transfers and The Child’s Voice. BIA Guidelines. Forum non conveniens may look at convenience to the child.

37. Child’s Voice and the Qualified Expert Witness Goes solely to whether continued custody by the parent Indian custodian is likely to result in serious emotional or physical damage to the child.

38. MEPA-IEP & Children’s Participation Placement, permanency based on unique needs of child, not race, ethnicity.

39. NACC / ABA STANDARDS Child’s counsel to – Ensure child’s physical presence in proceedings. – Ensure courts hear and consider unique child’s views. – Advocate for permanency. – Advocate for family relationships. – Recommended reading includes books advocating primary attachment / psychological parent theory.

40. Part V: The Child’s Preferences

41. A child, your child client is More complex than what the law implies. More nuanced. More evolving. More in need.

42. Child’s Expressed Preference... Is a moving target. Is fluid, evolving. Is influenced by conflicting loyalties, changing needs. Should be globally determined over time.

43. Your child client will tell you by... Words, in conversation, over time. Words from medical reports, police reports, court reports. Actions. Facial expression. Artistic and other expression. Flourishing and faltering.

44. Art Work, Home Work...

45. Even infants express preferences... Quality of an attachment. Thriving. Failing to thrive. Respiration. Gaze. Sucking response.

46. Part VI: PARTICIPATION

47. CHILDREN’s PARTICIPATION Increases their satisfaction with the outcome. Increases their self esteem. Affirms their sense of dignity and hope. Increases others’ satisfaction with the outcome.

48. CHILDREN’s PARTICIPATION ENDORSED BY ASFA ICWA The ABA. The NACC. The Pew Commission. The UN Comm’n on Rights of Child. Native American tradition.

49. Getting the judge to hear the child’s voice by... Having the child at all hearings. Highlighting the child’s voice and words as they appear in the documents. Leaving a photo, artwork with the judge.

50. Getting the judge to hear the child by... Highlighting when the Child flourishes, falters. Highlighting Child’s non-verbals. Submitting Child’s art, homework.pressions.

51. Part VII: THE TAKE AWAY Part VII: THE TAKE AWAY

52. THE TAKE AWAY: THE LAW “Indian Child” is a political designation. MEPA-IEP is the default position when the child does not fall in the political category of Indian Child--no delay in placement or permanency based on race, culture, ethnicity.

53. THE TAKE AWAY: THE PRACTICE The Child is the Constant. Preferences are communicated holistically. Participation is key.

54. THE END THE END