DLN Issues : Native Child and Family RightsFor the children in exile For more information see also DLN Coalition Working Group on Native Child and Family Rights and Resources and DLN Issues, Juvenile Justice
Return to DLN Issues Native Child and Family Rights page
Thanks to Marletta Pacheco. Please read also a correction as to the below document submitted by Sherri Eveleth of the
Nebraska Legal Services' Native American Program.
She notes that the Indian Child and Welfare Act is credited as written by the law form of Blue Dog, Olson and Small. She notes that it was the product of a number of people, requesting, "Please give credit for the Iowa ICWA to the people who worked so hard to make it a reality: Connie Bear King, Community Initiative for Native Children and Families, Sharon Red Deer, myself, Frank LaMere and Andrew Small." Read full text.
ALL ABOUT ICWA
December 20 2003 Resolution
ALL ABOUT ICWA
The federal Indian Child Welfare Act (ICWA) was passed 25 years ago to
stop states from taking Indian children from their families and raising
them in white families and white foster agencies. ICWA was passed to
recognize that decisions about Tribal families and children should be made
by Tribes.
Therefore ICWA gives Tribes the rights to intervene in a state court
adoption, foster care, or termination of parental rights proceeding
involving an Indian child. Tribes can petition to transfer the case to
Tribal court, or participate as a party in state court. ICWA also
requires states to notice Tribes and Indian parents when a hearing is
going to be held.
ICWA requires states to meet high standards for emergency removal of an
Indian child, foster care or adoptive placement of an Indian child, and
the termination of parental rights. Under ICWA, states are supposed to
work with the Tribe in providing services to the family, and in finding
placements with relatives for the children. Before the state can
terminate a parent's rights, put an Indian child in foster care or adopt
them out, the state must hold a hearing and show certain kinds of
evidence. This includes putting expert witnesses on the stand, who are
supposed to be people from the child's Tribe who know about Tribal
culture, families, and ways of child-rearing. ICWA requires states to do
an exhaustive search for Tribal families and agencies before placing an
Indian child with a white family or agency.
THE PROBLEM
Courts in South Dakota do not respect or follow the Indian Child Welfare Act.
Although Tribes can intervene in cases, which is an absolute right under
ICWA, the State often fights transfer to Tribal Court. State judges have
refused to transfer cases based on "timeliness." States attorneys
frequently give no notice or insufficient notice to the Tribes, or pretend
they don't know that the child is an Indian child. All of this violates
ICWA. The State DSS has also refused to honor Tribal Court orders and
judgments, which is required under ICWA.
State judges have also ruled that the higher standards that ICWA requires,
such as "active efforts" to prevent the breakup of an Indian family, are
the same as the "reasonable efforts" that are required by state law. They
allow white lawyers and other "professionals" with no expertise in Tribal
culture or child-rearing to testify as expert witnesses.
State courts also allow DSS to ignore the placement preferences required
by ICWA, allowing DSS remove Indian children and place them with white
foster families without doing any type of search for relative or Tribal
foster homes.
Finally, this year state judges have begun to interpret another federal
law, the Adoption and Safe Families Act, as overruling ICWA. This
releases state courts from following ICWA in cases where the Adoption and
Safe Families Act applies. CRST and OST are currently fighting this
decision in the South Dakota Supreme Court.
In short, state court decisions have created a situation where ICWA is
only a means for a Tribe to intervene in a state case and transfer to
Tribal Court under certain circumstances. Most of the protections of ICWA
do not exist in South Dakota for off-reservation families.
A STATE INDIAN CHILD WELFARE ACT
Last year, Iowa passed the Iowa Indian Child Welfare Act. This law
includes all of the protections of the federal ICWA, while it clarifies
the language of ICWA and builds even stronger protections for Indian
families. It requires compliance with ICWA, and punishes courts if they
do not follow both the state and federal ICWA. The state ICWA also
clarifies that the Adoption and Safe Families Act does not release state
courts from following ICWA.
Besides providing stronger protections for Tribes and families, a state
ICWA law would also protect against changes at the federal level. The
federal ICWA is occasionally threatened by amendments or a bad decision
from the Supreme Court. If the federal ICWA is weakened by amendments or
overturned, the state ICWA will continue to protect Tribal families.
The bill that was passed in Iowa is a very good law. It was written by an
Indian law firm in Minneapolis (Blue Dog, Olson & Small) for the Sac-Fox
Tribe. They drew on the experience of the Minnesota Indian Family
Protection Act, proposed federal amendments to ICWA, and the experiences
of the Tribes to write a law which solved every problem and issue Tribes
and families had experienced with the federal ICWA law. The authors of
this bill helped us adapt it for South Dakota.
Highlights of what the bill will do include:
. Clarify what is an ICWA case
. Establish the relationship between ICWA and ASFA
. Establish internal DSS compliance procedures
. Establish penalties (vacation of judgments) for violations
. Require use of Tribal services; require Tribal approval of non-Indian
family or agency placement
. Define standards for active efforts
. Clarify right to intervene in voluntary proceedings
. Add and strengthen notice requirements
. Define what must be included in notice requirements
. Allow Tribe the option to notice extended family members
. Get rid of timeliness exception to good cause; define good cause
. Limit parental objections to transfer to those consistent with purposes
of ICWA
. Clarify exclusive Tribal jurisdiction over off-rez Indian children, once
jurisdiction is transferred
. Clarify and strengthen post-adoption contact rights
. Clarify and strengthen rights of adoptees to access records
. Clarify equivalence of State- and Tribally-licensed foster homes
. Require different standards for reasonable and active efforts
. Define expert witness and establish order of preference
. Clarify DSS record-keeping responsibility
. Ensure right to counsel for child
. Clarify state payment for foster care
. Clarify Tribal/State agreements
STRATEGY
In moving forward to pass an Indian Child Welfare Act for South Dakota, we
have taken the following steps:
. Formed a state-wide coalition to work on passage of the bill [South
Dakota Indian Child Welfare Act Coalition: PO Box 747, Eagle Butte, SD
57625, (605) 964-6464 phone, (605) 946-6463 fax, or email to
sdicwanow@yahoo.com. Collect calls accepted.]
. Got resolutions supporting the bill passed by the Great Plains Tribal
Chairmen's Assocation (see below) and the CRST Tribal Councils.
Resolutions will go before the other Tribal Councils this week, and one is
in process at the Aberdeen Area Tribal Chairmen's Health Board
. Secured legislative sponsors for the bill
What still needs to be done:
. Gather testimony from around the state about violations of ICWA
. Educate key legislators on the issue and the bill
. Bring people to Pierre during the committee hearings on the bill to
testify and show support
. Place editorials and articles in key newspapers around the state
HOW TO TALK ABOUT THE BILL
The bill is about FAMILY PRESERVATION. ICWA was intended to preserve and
stregthen extended families by keeping them together.
By allowing Tribes and families to raise their own, the bill will save the
state MONEY. The state spends over $300 per child per month to put a
child in foster care. Over 60% of the children in state foster care are
Indian children, who could and should be placed with members of their
family.
A South Dakota ICWA does not simply duplicate the federal ICWA. It is
very necessary because it implements the federal law while providing
much-needed GUIDANCE to state judges on upholding and interpreting ICWA.
Currently the state is in violation of federal law. Why does the state
spend so much money to separate Indian children from their families in
violation of federal law? To preserve families, to save the state money,
and to ensure the state follows the law, we must pass the South Dakota
Indian Child Welfare Act.
The resolutions passed by the Tribes and the letters signed by the
Chairmen call upon Governor Rounds and Senators Daschle and Johnson to
support passage of this bill as part of their committment to
reconciliation. They have promised reconciliation and we must hold them to
their word.
The state cannot prosper without the Tribes prospering, and the Tribes
cannot prosper without their Children. Let us raise our own.
RESOLUTION OF THE GREAT PLAINS TRIBAL CHAIRMAN'S ASSOCIATION
Re: Supporting the South Dakota Indian Child Welfare Act
WHEREAS, The Great Plains (formerly Aberdeen Area) Tribal Chairman's
Association (GPTCA) is composed of the elected Chairs and Presidents of
the sovereign Indian Tribes and Nations recognized by Treaties with the
Unites States that are within the Great Plains Region of the Bureau of
Indian Affairs; and
WHEREAS, The Great Plains Tribal Chairman's Association was formed to
promote the common interests of the sovereign Tribes and Nations and their
members of the Great Plains Region; and
WHEREAS, The children of the Tribes and Nations of South Dakota have been
continually removed from Tribal families through federal policies of
assimilation, boarding schools, state and private child protection,
foster, adoption, and other social service agencies from the time of the
first Treaties through the present day; and
WHEREAS, The adoption and foster placement of these children in
non-Tribal and non-Indian homes and agencies resulted in spiritual,
emotional, mental, and physical health problems in these children,
including high rates of depression, addiction, school drop-outs,
incarceration, and suicide; and
WHEREAS, The adoption and foster placement of these children in
non-Tribal and non-Indian homes and agencies resulted in immeasurable
suffering for their parents, extended families and communities; and
WHEREAS, The adoption and foster placement of these children in
non-Tribal and non-Indian homes and agencies undermined the ability of the
Tribes and Nations to protect their sovereignty, conserve their tribal
property, develop their common resources, and promote the general welfare
of their people by damaging the Tribes' and Nations' connection to future
generations of Tribal members; and
WHEREAS, In recognition of these wrongs Congress passed the Indian Child
Welfare Act in 1978 to place decisions about Tribal families in Tribal
hands and restrict the ability of States to remove Indian children from
Indian homes; and
WHEREAS, The State of South Dakota, through its Unified Judicial System
and its Department of Social Services, routinely and knowingly violates
the Indian Child Welfare Act of 1978; and
WHEREAS, Because the State of South Dakota does not comply with the
Indian Child Welfare Act of 1978, Tribes and families face the same
problems with State removal of Indian children as they did twenty-five
years ago, before the passage of the federal law; and
WHEREAS, The Governor of South Dakota has made reconciliation one of his
administration's priorities, and both South Dakota United States Senators
support him in this effort toward reconciliation.
NOW, THEREFORE BE IT RESOLVED that the Great Plains Tribal Chairman's
Association hereby approves of and supports the effort to enact the South
Dakota Indian Child Welfare Act which is attached hereto.
BE IT FURTHER RESOLVED that the Great Plains Tribal Chairman's Association
hereby urges South Dakota Governor Mike Rounds to support the passage of
the South Dakota Indian Child Welfare Act as part of his administration's
efforts toward and commitment to reconciliation.
BE IT FINALLY RESOLVED that the Great Plains Tribal Chairman's Association
hereby urges United States Senators Tim Johnson and Tom Daschle to support
the passage of the South Dakota Indian Child Welfare Act as part of their
efforts toward and commitment to reconciliation.
CERTIFICATION
This resolution was enacted at a duly called meeting of the Great Plains
Tribal Chairman's Association held at Rapid City, South Dakota, on
December 20, 2003, at which a quorum was present, with ______ members
voting in favor, ______ members opposed, ______ members not abstaining,
and ______ members not present.
Dated this ______ day of ____________, 2003.
___________________________________
Secretary
Great Plains Tribal Chairman's Association
Attest:
___________________________________
Chairman
Great Plains Tribal Chairman's Association
Good Afternoon,
Thank you for your sincere effort in supporting Native American children, families and tribes through your support of a state Indian Child Welfare Act (ICWA) for South Dakota. The state law if very much needed, and I support your efforts.
I am an attorney licensed in the Omaha, Winnebago and Ponca Tribes as well as in South Dakota and Nebraska. I have worked for Nebraska Legal Services' Native American Program for 6 years as the project director and staff attorney. I represent tribes and parents in ICWA proceedings, and I serve as guardian ad litem for Indian children in tribal courts as well as providing traditional legal services in tribal courts. I also provide ICWA training to tribal ICWA specialists, attorneys, judges, parents, community members and anyone who will listen.
I was also involved in the creation of the Iowa Indian Child Welfare Act. Your website states that the Iowa Indian Child Welfare Act was written by a law firm named Blue Dog, Olson and Small. While Andrew Small was involved in the late editing stages of the law, there were many other people involved who deserve the credit for this law.
In the summer of 1998, Connie Bear King and Frank LaMere met with me in my office in Walthill, Nebraska (on the Omaha Reservation, but my office has since moved to Bancroft, Nebraska), to discuss the large number of Indian children in state care in Woodbury County, Iowa. After that meeting, a grassroots movement developed to address the families that had been torn apart and, hopefully, to prevent future tragedy. The Great Plains Tribal Chairmans' Association passed a resolution in support of the work that the group, now named Community Initiative for Native Children and Families (CINCF), was performing. CINCF was an all-volunteer group comprised of members of the Indian community, tribal leaders, ICWA specialists, Iowa Dept. of Human Services employees, social service providers, and anyone who cared enough to work for Indian children, families and tribes. The University of South Dakota also supported the work, and one of their students, Sharon Red Deer, spent a semester drafting the original Iowa ICWA in 2000. After two additional years of work in which I provided legal and technical assistance and drafting, Andrew Small then began working with the group after the legislation had been introduced to the Iowa Legislature.
Please give credit for the Iowa ICWA to the people who worked so hard to make it a reality: Connie Bear King, Community Initiative for Native Children and Families, Sharon Red Deer, myself, Frank LaMere and Andrew Small.
Thank you,
Sherri Eveleth
Nebraska Legal Services' Native American Program
P.O. Box 325
Bancroft, NE 68004
(800) 729-9908
(402) 648-3457
(402) 648-3461 (fax)
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