A historical and cultural perspective on ICWA Why was ICWA necessary?

A historical and A historical and cultural perspective cultural perspective

on ICWAon ICWA

Why was ICWA Why was ICWA necessary? necessary?

Everyone Everyone wants what is wants what is best for the best for the

child !child ! ““Why are Why are Indian Indian

children and families children and families treated differently?”treated differently?”

Understanding:Understanding:When someone says,When someone says, “we know what is best “we know what is best for your children,” for your children,” oror

““I am from the I am from the government - I am government - I am here to help”here to help”

Why trust is not Why trust is not the automatic the automatic

responseresponse

BIA started as part of BIA started as part of the War Departmentthe War Department

Education as a part of the Education as a part of the “civilizing” function“civilizing” function

Solution to the Solution to the “Indian “Indian Problem”Problem”

1878 the Hampton Institute, a 1878 the Hampton Institute, a school for freed slaves, accepted school for freed slaves, accepted Indian prisoners in an assimilation Indian prisoners in an assimilation

experiment.experiment.

In 1879 Carlisle Indian In 1879 Carlisle Indian School, patterned after the School, patterned after the

military model, opened.military model, opened.

By 1890 attendance was enforced By 1890 attendance was enforced through threats of cessation of through threats of cessation of

rations and supplies.rations and supplies.

Early “approved” curricula Early “approved” curricula prohibitedprohibited teaching of teaching of

reading/writing.reading/writing.





Many died of disease and Many died of disease and broken hearts.broken hearts.

Succeeded in breaking Succeeded in breaking intergenerational teaching in intergenerational teaching in

Indian communities. Indian communities. Language, religious practices, Language, religious practices,

cultural knowledge were cultural knowledge were targetedtargeted

Generations learned to parent Generations learned to parent from BIA dormsfrom BIA dorms

Motto at BIA Schools…Motto at BIA Schools…

Tradition is the enemy of Tradition is the enemy of progressprogress

A new ‘tradition’ is created A new ‘tradition’ is created that teaches ‘parenting’ from that teaches ‘parenting’ from matrons on the dormitoriesmatrons on the dormitories

We have seen how We have seen how the the federal federal

governmentgovernment has has treated Indian treated Indian

familiesfamiliesBut how have But how have StatesStates

treated families in treated families in Indian Country?Indian Country?

American Indian Policy American Indian Policy Review CommissionReview Commission

of theof theUnited States United States

CongressCongress

May 17, 1977May 17, 1977

Comparative Rates for Comparative Rates for Indian ChildrenIndian Children

100

420

270

050

100150200250300350400450

Arizona

St 100%

Adoption

Foster Care


100

840

270

0100200300400500600700800900

California

St 100%

Adoption

Foster Care


100

370

710

0

100

200

300

400

500

600

700

800

Michigan

St 100%

Adoption

Foster Care


100

390

1650

0200400600800

10001200140016001800

Minnesota

St 100%

Adoption

Foster Care


100

480

1280

0

200

400

600

800

1000

1200

1400

Montana

St 100%

Adoption

Foster Care


100280

2010

0

500

1000

1500

2000

2500

North Dakota

St 100%

Adoption

Foster Care


100

340

1500

0

200

400

600

800

1000

1200

1400

1600

Utah

St 100%

Adoption

Foster Care


100

1900

960

0200400600800

100012001400160018002000

Washington

St 100%

Adoption

FosterCare


100%

1600%

0%0%

200%

400%

600%

800%

1000%

1200%

1400%

1600%

Wisconsin

St 100%

Adoption

FosterCare

How does this How does this happen?happen?

An exercise …An exercise …

MIND THE LITTLE THINGSMIND THE LITTLE THINGS

Springs are little things, but Springs are little things, but they are sources of large they are sources of large streams; nails and pegs are streams; nails and pegs are little things, but they hold the little things, but they hold the parts of a large building parts of a large building together; a word, a look, a together; a word, a look, a smile, a frown, are all little smile, a frown, are all little things, but powerful for good things, but powerful for good or evil. Think of this and or evil. Think of this and mind the little things.mind the little things. - Hillis - Hillis

Find the number Find the number ofofFFss






Springs are little things, but Springs are little things, but they are sources of large they are sources of large streams; nails and pegs are streams; nails and pegs are little things, but they hold the little things, but they hold the parts of a large building parts of a large building together; a word, a look, a together; a word, a look, a smile, a smile, a ffrown, are all little rown, are all little things, but powerful for good things, but powerful for good or evil. Think of this and or evil. Think of this and mind the little things.mind the little things. - Hillis - Hillis


Springs are little things, but Springs are little things, but they are sources of large they are sources of large streams; nails and pegs are streams; nails and pegs are little things, but they hold the little things, but they hold the parts of a large building parts of a large building together; a word, a look, a together; a word, a look, a smile, a smile, a ffrown, are all little rown, are all little things, but powerthings, but powerfful for good ul for good or evil. Think of this and or evil. Think of this and mind the little things.mind the little things. - Hillis - Hillis


Springs are little things, but Springs are little things, but they are sources of large they are sources of large streams; nails and pegs are streams; nails and pegs are little things, but they hold the little things, but they hold the parts of a large building parts of a large building together; a word, a look, a together; a word, a look, a smile, a smile, a ffrown, are all little rown, are all little things, but powerthings, but powerfful ul ffor good or good or evil. Think of this and or evil. Think of this and mind the little things.mind the little things. - Hillis - Hillis


Springs are little things, but Springs are little things, but they are sources othey are sources off large large streams; nails and pegs are streams; nails and pegs are little things, but they hold the little things, but they hold the parts of a large building parts of a large building together; a word, a look, a together; a word, a look, a smile, a smile, a ffrown, are all little rown, are all little things, but powerthings, but powerfful ul ffor good or good or evil. Think of this and or evil. Think of this and mind the little things.mind the little things. - Hillis - Hillis


Springs are little things, but Springs are little things, but they are sources othey are sources off large large streams; nails and pegs are streams; nails and pegs are little things, but they hold the little things, but they hold the parts oparts off a large building a large building together; a word, a look, a together; a word, a look, a smile, a smile, a ffrown, are all little rown, are all little things, but powerthings, but powerfful ul ffor good or good or evil. Think of this and or evil. Think of this and mind the little things.mind the little things. - Hillis - Hillis


Springs are little things, but Springs are little things, but they are sources othey are sources off large large streams; nails and pegs are streams; nails and pegs are little things, but they hold the little things, but they hold the parts oparts off a large building a large building together; a word, a look, a together; a word, a look, a smile, a smile, a ffrown, are all little rown, are all little things, but powerthings, but powerfful ul ffor good or good or evil. Think oor evil. Think off this and this and mind the little things.mind the little things. - Hillis - Hillis

Another view of Another view of the impactthe impact

When someone says,When someone says,

“ “ we know what is we know what is best for your best for your children.”children.”

IDENTIFICATION IDENTIFICATION WITH THEWITH THE

AGGRESSORAGGRESSOR

Thematic Thematic Apperception Apperception

testtestGood BadGood Bad

Beautiful UglyBeautiful Ugly

Smart DumbSmart Dumb

Honest DishonestHonest Dishonest

Identification with the Identification with the AggressorAggressor Baseline:Baseline:

Suicide rate of Suicide rate of teenagers in teenagers in U.S.U.S.

Inner CityInner City twicetwice as high as high

ReservationsReservations higherhigher

Indian kids in non-Indian kids in non-Indian homesIndian homes highesthighest

Identification with Identification with the Aggressorthe Aggressor Baseline:Baseline:

Suicide rate of Suicide rate of teenagers in teenagers in U.S.U.S.

Inner CityInner City twicetwice as high as high

ReservationsReservations higherhigher

Indian kids in non-Indian kids in non-Indian homesIndian homes highesthighest

Teenage Suicide

Baseline Inner City

Reservation Non-Ind homes

ICWA …ICWA …

Sec. 2Sec. 2…the Congress finds……the Congress finds…(4) that an alarmingly high (4) that an alarmingly high percentage of Indian percentage of Indian families are broken up by families are broken up by the removal, often the removal, often unwarranted, of their unwarranted, of their children…children…by nontribal public and by nontribal public and private agencies….private agencies….

Sec. 2Sec. 2…the Congress finds……the Congress finds…(4) (4) that an alarmingly high that an alarmingly high percentage of Indian percentage of Indian familiesfamilies are broken up by are broken up by the removal, often the removal, often unwarranted, of their unwarranted, of their children…children…by nontribal public and by nontribal public and private agencies….private agencies….

Sec. 2Sec. 2…the Congress finds……the Congress finds…(4) that an alarmingly high (4) that an alarmingly high percentage of Indian percentage of Indian families families are broken up by are broken up by the removal,the removal, often often unwarranted, of their unwarranted, of their children…children…by nontribal public and by nontribal public and private agencies….private agencies….

Sec. 2Sec. 2…the Congress finds……the Congress finds…(4) that an alarmingly high (4) that an alarmingly high percentage of Indian percentage of Indian families are broken up by families are broken up by the removal, the removal, often often unwarrantedunwarranted,, of their of their children…children…by nontribal public and by nontribal public and private agencies….private agencies….

Sec. 2Sec. 2…the Congress finds……the Congress finds…(4) that an alarmingly high (4) that an alarmingly high percentage of Indian percentage of Indian families are broken up by families are broken up by the removal, the removal, often often unwarrantedunwarranted, , of their of their children…children…by nontribal public and by nontribal public and private agencies….private agencies….

Sec. 2Sec. 2…the Congress finds……the Congress finds…(4) that an alarmingly high (4) that an alarmingly high percentage of Indian percentage of Indian families are broken up by families are broken up by the removal, the removal, often often unwarrantedunwarranted, of their , of their children…children…by nontribal public and by nontribal public and private agencies….private agencies….

Differences of OpinionDifferences of Opinion Proposition:Proposition: The Indian child welfare The Indian child welfare

system/tribal approach ought to be system/tribal approach ought to be more like the state approach. Indian more like the state approach. Indian children should be treated just like all children should be treated just like all other children.other children.

But….But…. 500,000500,000 children in foster care in this children in foster care in this

countrycountry 19,000 19,000 will age out this yearwill age out this year 60%60%

Homeless, in jail or deadHomeless, in jail or dead

Differences of OpinionDifferences of Opinion Proposition:Proposition: Tribes should be Tribes should be

providing the child welfare services providing the child welfare services without state assistance if they wish without state assistance if they wish to assume jurisdictionto assume jurisdiction

But….But…. Approximately Approximately 60% of state 60% of state

spendingspending on child welfare is federal on child welfare is federal source or reimbursementsource or reimbursement

Approximately Approximately 20% of tribal 20% of tribal spendingspending on child welfare is federal on child welfare is federal source or reimbursementsource or reimbursement

Differences of OpinionDifferences of Opinion Proposition:Proposition: The ICWA is federal The ICWA is federal

law, adopted in in 1978, and is law, adopted in in 1978, and is applicable to state courts dealing applicable to state courts dealing with Indian childrenwith Indian children

But….But…. Many judges do not understand, or Many judges do not understand, or

even know of, the requirements of even know of, the requirements of the ICWA…or do not agree with the the ICWA…or do not agree with the reasons for it’s enactmentreasons for it’s enactment

Differences of OpinionDifferences of Opinion Proposition:Proposition: Tribes delay too long Tribes delay too long

in participating in state child welfare in participating in state child welfare proceedings, especially when making proceedings, especially when making a decision to request transfer late in a decision to request transfer late in a casea case

But….But…. ??

Differences of OpinionDifferences of Opinion Proposition:Proposition: Tribes delay too long Tribes delay too long

seeking “permanency” under ASFA, seeking “permanency” under ASFA, particularly when ASFA requires [with particularly when ASFA requires [with exceptions] the filing of petitions to exceptions] the filing of petitions to terminate parental rights after 15 out terminate parental rights after 15 out of 22 months in out of home careof 22 months in out of home care

But….But…. ??

Understanding the Understanding the purpose of ICWA is purpose of ICWA is

crucialcrucial to to interpreting and interpreting and applying the lawapplying the law

Differences of Legal Differences of Legal InterpretationInterpretation Existing Indian Family Doctrine Existing Indian Family Doctrine [[Matter Matter

of the Adoption of Baby Boy Lof the Adoption of Baby Boy L – Kansas – Kansas Supreme Court 1982]Supreme Court 1982]

V. Opportunity to develop Indian identity V. Opportunity to develop Indian identity [In re Junious M – Cal. Ct. App. 1983][In re Junious M – Cal. Ct. App. 1983]

Baby Boy L implicitly overruledBaby Boy L implicitly overruled [[Mississippi Band of Choctaw Indians v Mississippi Band of Choctaw Indians v HolyfieldHolyfield – U.S. Sup Ct 1989] – U.S. Sup Ct 1989]

State court deciding if family of removal State court deciding if family of removal is “Indian enough” to warrant protection is “Indian enough” to warrant protection under ICWA, notwithstanding the under ICWA, notwithstanding the definitions of Indian and Indian child in definitions of Indian and Indian child in ICWAICWA [ [In re CrewsIn re Crews – Wa. Sup. Ct. 1993] – Wa. Sup. Ct. 1993]

Differences of Legal Differences of Legal InterpretationInterpretation

Acknowledgement of paternity & Acknowledgement of paternity & putative putative fathersfathers

ICWAICWA: Parent “does : Parent “does notnot include the include the unwed father where paternity has not unwed father where paternity has not been acknowledged or established”been acknowledged or established”

New JerseyNew Jersey: according to state law – : according to state law – written and timely acknowledgementwritten and timely acknowledgement

ArizonaArizona: simple acknowledgement : simple acknowledgement and no formal process requiredand no formal process required


P.L. – 280 and the ICWAP.L. – 280 and the ICWA Wisconsin A.G. Opinion [70 Op. Att’y Wisconsin A.G. Opinion [70 Op. Att’y

Gen. Wis. 237 (1981)] :Gen. Wis. 237 (1981)] : “…Pub. L. “…Pub. L. No. 280 and non-Pub. L. 280 No. 280 and non-Pub. L. 280 Wisconsin Indian tribes’ have Wisconsin Indian tribes’ have exclusive regulatory jurisdiction exclusive regulatory jurisdiction over child custody proceedingsover child custody proceedings involving Indian children who involving Indian children who reside or are domiciled within reside or are domiciled within the reservation.”the reservation.”


P.L. – 280 and the ICWAP.L. – 280 and the ICWA Doe v MannDoe v Mann, 9, 9thth Circuit filed July Circuit filed July

19, 2005:19, 2005: “…“…case of first impression for case of first impression for

the federal courts, requiring us the federal courts, requiring us to reconcile [P.L.280]…with the to reconcile [P.L.280]…with the exclusive jurisdiction granted exclusive jurisdiction granted to tribes by ICWA…”to tribes by ICWA…”

“…“…ICWA does not provide ICWA does not provide [tribe] with exclusive [tribe] with exclusive jurisdictionjurisdiction…”…”


NoticeNotice In any In any involuntaryinvoluntary proceeding proceeding

in a State court, where the in a State court, where the court court knows or has reason to knows or has reason to knowknow that an Indian child is that an Indian child is involved, ...involved, ...shall notifyshall notify the the parent or Indian custodian parent or Indian custodian and the Indian child’s tribe…and the Indian child’s tribe…


NoticeNoticeWisconsin [ In re Wisconsin [ In re Arianna R.GArianna R.G., .,

2003]: specific allegations of 2003]: specific allegations of heritage with an Ojibwa Tribe heritage with an Ojibwa Tribe in Marinette, Wi, where BIA in Marinette, Wi, where BIA unable to ascertain tribe, was unable to ascertain tribe, was too vague and therefore no too vague and therefore no notice was requirednotice was required


NoticeNoticeCalifornia App Ct [In re Nikki California App Ct [In re Nikki

R, 2003] evidence that R, 2003] evidence that child’s paternal great child’s paternal great grandparents were Indian grandparents were Indian was sufficient to require was sufficient to require noticenotice

Finally,Finally,

The endThe end

But first one last storyBut first one last story

The Wolves WithinAuthor Unknown


An old grandfather, whose grandson came to him, angry at a schoolmate who had done him an injustice, said "Let me tell you a story. I too, at times, have felt a great hate for those that have taken so much, with no sorrow for what they do. But hate wears you down, and does not hurt your enemy. It is like taking poison and wishing your enemy would die. I have struggled with these feelings many times."


An old grandfather, whose grandson came to him, angry at a schoolmate who had done him an injustice, said "Let me tell you a story. I too, at times, have felt a great hate for those that have taken so much, with no sorrow for what they do. But hate wears you down, and does not hurt your enemy. It is like taking poison and wishing your enemy would die. I have struggled with these feelings many times."


An old grandfather, whose grandson came to him, angry at a schoolmate who had done him an injustice, said "Let me tell you a story. I too, at times, have felt a great hate for those that have taken so much, with no sorrow for what they do. But hate wears you down, and does not hurt your enemy. It is like taking poison, but wishing your enemy would die. I have struggled with these feelings many times."


An old grandfather, whose grandson came to him, angry at a schoolmate who had done him an injustice, said "Let me tell you a story. I too, at times, have felt a great hate for those that have taken so much, with no sorrow for what they do. But hate wears you down, and does not hurt your enemy. It is like taking poison, but wishing your enemy would die. I have struggled with these feelings many times."


He continued, "It is as if there are two wolves inside me; one is good and does no harm.


He continued, "It is as if there are two wolves inside me; one is good and does no harm. He lives in harmony with all around him and does not take offense when no offense was intended. He will only fight when it is right to do so, and in the right way."


But the other wolf, ah! He is full of anger. The littlest thing will set him into a fit of temper. He fights everyone, all the time, for no reason. He cannot think because his anger and hate are so great. It is helpless anger, for his anger will change nothing. Sometimes it is hard to live with these two wolves inside me, for both of them try to dominate my spirit."


But the other wolf, ah! He is full of anger. The littlest thing will set him into a fit of temper. He fights everyone, all the time, for no reason. He cannot think because his anger and hate are so great. But it is a helpless anger, for his anger will change nothing.


Sometimes it is hard to live with these two wolves inside me, for both of them try to dominate my spirit.


The boy looked intently into his Grandfather's eyes and asked, "Which one wins, Grandfather?"


The boy looked intently into his Grandfather's eyes and asked, "Which one wins, Grandfather?"

The Grandfather smiled and said, "The one I feed."

Thank-you for Thank-you for letting me visit letting me visit

with youwith you

A historical and cultural perspective on ICWA Why was ICWA necessary?

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