The National Indian Child Welfare Association wants to know why you #DefendICWA. Photo: NICWA

Law | National

California remains a battleground for Indian Child Welfare Act

Thursday, July 21, 2016

The promise of the Indian Child Welfare Act continues to go unrealized in California, a panel of tribal leaders has concluded.

When the law was passed in 1978, Indian children were disproportionately represented in the child welfare and foster care system. They were more likely to be placed in non-Indian homes, a situation that Congress hoped to address with ICWA.

Nearly four decades later, tribal leaders have produced a detailed report that shows how little has changed. Failures to notify tribes, lack of funding and inadequate social services have prevented the state from ensuring that Indian children stay connected to their communities, according to the ICWA Compliance Task Force.

“The safety net created 40 years ago by ICWA to protect our most vulnerable children in Indian Country is not working in California,” Mary Ann Andreas, the vice chair of the Morongo Band of Mission Indians and a co-chair of the task force, said in a press release. “While some progress has been made over the past four decades, the overall effort has failed to meet the mandates of federal and state law and, as a result, tribal children, their families and their tribes have paid a terrible price.”

California is home to the largest number of Native Americans in the United States and more than 100 tribes are based there. But the task force notes that Indian children in the state are often members of tribes based elsewhere. In some instances, children may be connected to multiple tribes.

That makes it difficult for tribes to participate even though the law requires them to be notified, according to the report. State rules regarding juvenile proceedings contain different deadlines than those found in ICWA regulations, further complicating efforts.

The state has well been aware of the issue. Based on data from the California Dependency Online Guide, an official publication of the state's judicial system, the task force noted that 85 percent of the ICWA appeals in 2015 were about inquiry and notice and an overwhelming majority of those appeals required further proceedings due to non-compliance.

"It bears repeating, the only practical limitation on a tribe’s right to participate or intervening is notice," the report states. "When a tribe is not identified, or is not properly noticed, as is frequently the case, the tribe cannot intervene when it is unaware of a proceeding."

Beyond notice issues, the task force said inadequate funding hinders efforts to place Indian children in homes preferred by their tribes. Some counties have refused to offer funding for child-proofing and other repairs in these homes even though they would provide the same resources to non-Indians, according to the report.

The task force recommends the state seek funding for a wide array of ICWA initiatives, such as paying for court appointed counsel for tribes that aren't able to send attorneys to every proceeding in every courthouse. Federal social service grants could be shared with tribes or directed to specific ICWA efforts, and existing programs like those for recruiting foster and adoptive families could also be shared, according to the report.

"Our hope is that by working collaboratively with the Attorney General’s Office and the Bureau of Children’s Justice, we can identify the problems and enact solutions that will affect change to improve results and protect Indian children and families," said Barry Brenard, the chairman of the Bear River Band of Rohnerville Rancheria and the other co-chair of the task force.

The task force was created last year through talks with the California Department of Justice but it operates independent of the state. In February 2015, Attorney General Kamala Harris created the Bureau of Children's Justice and sought input from tribes about ways to better comply with ICWA.

The members of the task force are: Barry Bernard, Chairperson, Bear River Band of Rohnerville Rancheria; Angelina Arroyo, Vice-Chairperson, Habematolel Pomo of Upper Lake; Maryann McGovran, Chairperson, North Fork Rancheria of Mono Indians of California; Mary Ann Andreas, Vice-Chair, Morongo Band of Mission Indians; Robert Smith, Chairperson, Pala Band of Mission Indians; Aaron Dixon, Secretary/Treasurer, Susanville Indian Rancheria and the Honorable Abby Abinanti, Chief Judge, Yurok Tribal Court.

The group's report comes amid renewed attention to ICWA issues across the nation. The Bureau of Indian Affairs has issued a new rule and new guidance to help state courts and state child welfare agencies better comply with the law.

"Tribal children are still disproportionately more likely to be removed from their homes and communities than other children," Larry Roberts, the leader of the BIA, said last month. "Tribal families continue to be broken up by the removal of their children."

In California, a high-profile ICWA case involving a Choctaw Nation girl has drawn significant media coverage. The dispute underscores some of the issues outlined in the report -- the Choctaws are based in southeastern Oklahoma, more than 1,400 miles from the courthouses in Los Angeles County where the proceedings took place, and the family that the tribe selected for the girl is located in Utah, where her siblings and relatives live.

"When the best interests of an Indian child are being considered, the importance of preserving the child’s familial and cultural connections often cannot be separated from other factors," a state appeals court ruled on July 8 in a decision that recognized the tribe's rights under ICWA.

The attorney who is representing the foster family in the case has promised further appeals and is connected to efforts to erode ICWA. Nationwide, conservative groups are also leading attempts to undermine the law.

"We can’t rest on the knowledge that ICWA is the law; we must persuade our fellow citizens, lawmakers and judges that it is an important law that must be maintained and should be adhered to," Sam Hirsch, a top official at the Department of Justice, told the National Indian Child Welfare Association in April.

Relevant Documents:
Final Rule: Indian Child Welfare Act (ICWA) Proceedings | Final Rule: Indian Child Welfare Act (ICWA) Frequently Asked Questions | Dear Tribal Leader Letter | Dear State Governor Letter

Federal Register Notices for Indian Child Welfare Act Rule:
Indian Child Welfare Act Proceedings (June 14, 2016)
Regulations for State Courts and Agencies in Indian Child Custody Proceedings (March 30, 2015)
Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (February 25, 2015)