Members of the California Tribal Families Coalition pose with California Attorney General Xavier Becerra (D), third from left, after the completion of an Indian Child Welfare Act report. Photo: CTFC

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Tribes help bring down barriers to Indian Child Welfare Act

Wednesday, October 3, 2018

The Indian Child Welfare Act remains under attack across the nation but tribes in one state are working to ensure they have a voice in protecting their children.

A new law on the books in California helps with those efforts by eliminating barriers in ICWA matters. Assembly Bill 3047 makes it easier for tribes to participate in child welfare proceedings by waiving fees that their attorneys had to pay in the state court system.

“ICWA is an important law that helps protect our children from being separated from their tribal communities and their culture,” said Robert Smith, who serves as chairman of the California Tribal Families Coalition and as chairman of the Pala Band of Mission Indians. “AB 3047 will help increase the participation of tribes in child custody cases where ICWA applies.”

The California Tribal Families Coalition championed the bill, which was sponsored by Assemblymember Tom Daly, a Democrat. The measure was signed into law on September 14.

“Financial barriers are often cited as a major factor affecting whether tribes have proper representation during these cases,” Daly said. “These fees can quickly add up, becoming a huge financial burden for tribes. This causes a distraction from the ultimate goal: ensuring Native American children retain ties to their tribe and cultural heritage."

Separately, the California Supreme Court on Monday eliminated another barrier to tribal participation. Tribal attorneys no longer need to "associate" with a local counsel before participating in ICWA cases.

“My office shares the goal of increasing access to the protections afforded by ICWA,” said Attorney General Xavier Becerra, a Democrat who supported the rule change as well as Assembly Bill 3047. “My office is committed to protecting Native American heritage and the rights of Native American children in California.”

Kathryn E. Fort, who serves as staff attorney for the Indigenous Law and Policy Center at Michigan State University College of Law, closely follows ICWA developments. In a post on Turtle Talk, she said California had one of the "highest" fees for out-of-state attorneys and the "tightest limitations" on how these attorneys could participate in the state court system.

"If California (and Washington and Michigan and Minnesota and Nebraska and Oregon) can get this done, so can your state," Fort wrote on the influential blog.

Tribes have long called on California to improve compliance with ICWA, which became law in 1978 in response to the high rates of Indian children being taken from their communities. Failures to notify tribes, lack of funding and inadequate social services were among major issues raised in a 2016 report issued by a task force of tribal leaders whose work was supported by the state attorney general's office.

Following the completion of the report, tribes formed the California Tribal Families Coalition. The organization consists of thirteen tribal leaders from across the state, including five of the seven co-chairs of the task force.

California is home to more than 100 tribes and also to the largest number of American Indians and Alaska Natives anywhere in the country, according to the U.S. Census Bureau. The two factors contribute to a significant number of ICWA cases in the state system.