Turtle Talk

From ICT:

SAULT STE. MARIE, Mich. – The Indian Child Welfare Act is a federal law pertaining to American Indian and Alaska Native children that many tribal members are unaware of. Attorneys, judges, social workers and state court systems work with this act almost daily. The United States Congress enacted ICWA more than 30 years ago to protect the best interests of Indian children, and to promote the cohesiveness of Indian families and tribes. Because it is a federal law, it pre-empts state law in its application, meaning in a state court setting applying the standards of ICWA is mandatory.

For ICWA’s protections to apply, a child must be an enrolled member of an Indian tribe or be eligible for enrollment. The individual tribe to which the child belongs is responsible for determining membership eligibility.

ICWA applies to children who have parents whose rights are being terminated, or who have been taken out of their home and placed into a guardianship, foster care or any permanent or pre-adoptive placement.

State court systems and judges in states with very low Indian populations often misunderstand the law, such as Georgia.

Sault Ste. Marie Tribe of Chippewa Indians’ prosecuting attorney Eric Blubaugh, said, “Everyone gets in a sort of professional comfort zone, and state courts are no exception. A state court, when confronted with a case involving an Indian child, must apply different standards than they would in a case involving a non-Indian child. And the frontline professionals – caseworkers and attorneys – must assess an ICWA case’s merits much differently due to the higher standards of proof.”

When an Indian child is involved in a case in any applicable state court proceeding, the tribe has a right, according to Blubaugh, to be an intervening party to the case. “Right now we have intervened and are monitoring in excess of 80 cases throughout the United States involving Sault Tribe children. As we are trying to monitor those cases, we are taking care of our own child welfare cases in our own tribal court. And in many instances it is much more difficult to deal with a troublesome case from across the country.”

Blubaugh is the tribe’s sole prosecutor, and works closely with his legal assistant, Amy Perron.

He believes case law involving federal and state opinions has been interpreted in such a way as to take some of the original intent out of the act. “As I read the case law interpreting ICWA, it just seems to be chiseling away at ICWA’s original standards.”

A study on the implementation of ICWA by the Government Accountability Office was released in 2005 identifying the need for a monitoring and review process of the act. Another issue the report identified was the connection between tribal funding and ICWA implementation – limited access to federal child welfare funding impacts a tribe’s ability to serve its children.

“It is really the only major federal child welfare law that doesn’t have a federal review of some kind attached to it,” said David Simmons, government affairs and advocacy director at the National Indian Child Welfare Association. “We have gone 32 years with no system in place to help measure and identify areas for improvement amongst the various states with regard to ICWA implementation. We are trying to piecemeal and understand the issues and create the most effective solutions. A federal review system is long overdue.”

States with larger Indian communities, according to Blubaugh, such as Arizona, Florida, Michigan and California, are progressive in applying ICWA. Michigan has adopted court rules that have standardized how state courts implement ICWA and work with Indian children and their families. A taskforce of Michigan child welfare workers, attorneys and judges was organized, and over a period of about 18 months, developed a court resource guide that was published and distributed in 2009.

The Hon. Michael J. Anderegg, presiding judge of the 25th Circuit Court – Family Division in Marquette, Mich., said, “There have been some proposals to amend ICWA that haven’t gone very far. Because we have such a substantial history with ICWA I think I would be reluctant to go back and try to change the ground rules at this point. We would be better off to adjust how we do business and it may be that we should revisit not the act itself, but the guidelines for state courts. Those were first published in the Federal Register in 1979 and there has been nothing since then. There are some issues that could be clarified by a federal action that is short of amending ICWA.

“We are fortunate in Michigan because we have had good cooperation between the state and the tribes. I think the more we talk about ICWA and work with it trying to solve problems as they come up, the better off we will all be.”

Other states, according to Blubaugh, are behind the times either because they don’t have a large Indian population and don’t deal with ICWA often, or they choose to not comply with the act. “Right now I am having a problem with a case in a Georgia state court. ICWA to them is not a set of safeguards so much as a major inconvenience. Individual tribes cannot always afford to appeal every bad court decision that violates the tenets of ICWA. It has been a constant struggle with this court to enforce the rights that we have as a tribe to intervene in that case. The Georgia court took the approach that because I was not a Georgia licensed attorney, I had no right to file intervention in their court.”

“This has been a challenge in several different jurisdictions across the country,” Simmons said. “The ICWA does not specifically state that you have to be a licensed attorney within any particular state to file pleadings. The common interpretation is that a duly appointed representative of the tribe should be able to file pleadings on behalf of a tribal child in any state court. Some states have made that even more clear by clarifying that in their own state policies or laws. Typically, what I find is that once judges have a better understanding of how the ICWA works and how tribal governments and their special relationship with the federal government work, usually most of those challenges can be overcome.”

To help educate state courts about ICWA, Blubaugh and Perron have developed a brochure they are mailing with their child welfare correspondence. “We are trying to educate state courts that ICWA is a set of tools for them to use to ensure that our tribal culture is not being eradicated through their state court system,” Blubaugh said. “As we find in the Georgia case, we hope that our partners are not adversaries, we are all trying to do the same thing – work to keep these families together.”

According to Simmons, if ICWA is not complied with the worst that can happen is a placement could be invalidated. “We need implementation of the law to happen according to the way it was designed to happen. For people that willfully choose to not follow the law, there needs to be some kind of penalty.”

Blubaugh said it would be a good idea for those states that have not already done so, to form committees to create guidelines on how to deal with ICWA cases relative to their own state codes. Creating a comprehensive manual will provide some much-needed uniformity in the way the state courts deal with these cases.

“Tribes within Michigan are getting better at working together and sharing information. It takes a lot of effort and time to build those relationships and right now there are not a lot of resources to do that. But we are trying.”

For more information about the Indian Child Welfare Act, visit www.nicwa.org. To view a summary of findings and GAO recommendations on the 2005 study, visit www.gao.gov/products/GAO-05-290.