Turtle Talk

From ICT:

SAULT STE. MARIE, Mich. – The Indian Child Welfare Act is a federal law that can at times be confusing to those it was designed to help – tribes, tribal children, their families and the state and tribal court systems.

Making ICWA easier to use and understand is the goal of a group of dedicated people – a special committee formed by the Michigan Supreme Court. This committee is charged with helping Indian children and families in child welfare cases, and with educating judges and child welfare practitioners about ICWA.

Congress enacted ICWA in 1978 to help prevent the disruption of Indian families and tribes due to state and federal child welfare practices.

In 2008, a special committee was formed by the Michigan Supreme Court to help Michigan judges and child welfare practitioners learn more about ICWA and understand the need for states to comply with the act and how it can be better implemented within Michigan.

In 2009, the State Court Administrative Office, the administrative agency of the Michigan Supreme Court, published a court resource guide. This guide is designed to provide Michigan trial courts with best practice tips to apply when using ICWA. During work on the court resource guide it was determined further research was needed and a subcommittee was formed that recommended changes to Michigan’s court rules to help with the recognition and implementation of ICWA. On Jan. 27, the Michigan Supreme Court approved those changes, which became effective May 1.

A second subcommittee, the Tribal Court Relations Committee, was formed as part of the Court Improvement Program Statewide Task Force and continues to meet on proposed state legislation that was drafted to reflect the federal statute with the goal of making judges and child welfare workers more aware of ICWA at both the tribal and state levels. A special session to review the proposed ICWA statute is being held Sept. 30 in Lansing. This meeting is by invitation only to the ICWA committee that authored the Court Resource Guide.

Additionally, in 2010 the Michigan Supreme Court has been sponsoring ICWA training and dialogue for state court judges, tribal representatives, attorneys, court staff and Department of Human Services workers as a step toward implementing the “best interests” considerations for Indian children, families and tribes.

Planning is also underway for the Walking on Common Ground: Michigan Regional Conference, Oct. 12 – 13 at the Grand Traverse Resort in Acme, Mich., for tribal, federal and state justice communities throughout Michigan, Minnesota and Wisconsin. Walking on Common Ground promotes collaboration, education and the sharing of resources to build a more positive future for tribal children and families involved in the child welfare system.

Timothy P. Connors, circuit court judge for the 22nd Judicial Circuit of Michigan, said, “If ICWA is codified into state law it will be more likely to be followed in our state courts. ICWA crosses the lines in several of our state courts; it comes up in our probate courts through guardianships and adoptions, through our circuit court in abuse and neglect cases out of the juvenile docket, and occasionally it can come up in a divorce proceeding. We are trying to make sure the legislation incorporates all of those areas so that whoever is following the statute can clearly see what they need to do and how it might be different for an Indian child.”

Connors said his attraction to ICWA came out of a larger attraction to issues involving Indian sovereignty. “One of the things I believe strongly in is the concept that what we do now is a result of those who came before us and that what we do will affect those that come after us for the next seven generations. I think the philosophy that comes out of tribal courts is a philosophy that is superior to state courts in many ways. The irony is that while many times there is a paternalistic attitude by state court justice systems towards tribal courts, I quite candidly feel that we have a lot to learn from them. The range of relationships in our state court systems to our tribal neighbors goes all the way from ignorance to hostility.”

Unique to Washtenaw County, according to Connors, is his appointment pursuant to a local administrative order approved by the Michigan Supreme Court as an ICWA specialist. “This is something that I think may be appealing to other state court judges – you don’t have to have every judge in your county understand ICWA. You don’t even have to have every judge be supportive of it. But you need to have a judge who is willing to do the work and learn about it so that any case coming through the court system – be it in circuit court, probate court or juvenile court – involving an Indian child can get assigned to that judge so it is handled properly. That really takes away a lot of the argument from those who are hostile – you can decide you don’t want to accept the federal law, you can feel that it is inappropriate; but then let others that understand it and want to do the work do it. People seem to think it is a good idea; to me it seems obvious.”

Connors said he believes in getting the tribes involved from the beginning and giving tribes and tribal courts the deference they are entitled to under the law. “To me it is a really fascinating time to be involved; there are a lot of old attitudes and a lot of barriers, but there are also a lot of new attitudes and bridges being built.”

Connors said his family emigrated to the U.S. from Ireland after the famine and homesteaded in South Dakota. “There was a full range of attitudes in our family about Indians from very supportive to outright hostile. There were a few things that really profoundly affected me as a child and one of them was the oral history that has been handed down. My great grandmother was putting out the wash and one of the little girls, my grandfather’s sister, was with her when three Indians came riding up on horses and sat there watching them. The little girl asked why they were sitting there. My great grandmother told her they were starving and not to look at them; that if they were to feed them they would keep coming back. The little girl said ‘This is their land; aren’t we doing to them what the English did to us?’ A child taught us how to behave. For me this is real, strong and intense – this is my time to do my part.”

Angel Sorrells, a management analyst with SCAO’s, Child Welfare Services division, said the role of Child Welfare Services is to ensure through the Court Improvement Program that Michigan trial courts comply with all state and federal laws and do so effectively. “We saw that courts needed improvement complying with ICWA. We created a special committee with about 60 people and developed the Court Resource Guide – a practical step-by-step instructional guide for trial courts and staff on how to implement the ICWA in Michigan, taking into consideration Michigan’s statutes, court rules and case law.

“ICWA can no longer be an afterthought, it is everywhere you turn. Getting the legislative draft circulating among the tribes for review and comment will be the next step. The plan is to get a consensus among trial courts, the Department of Human Services and the state’s 12 federally recognized tribes.”

Maribeth Preston, a Child Welfare Services management analyst, said, “In 2009, we sent a hard copy of the Court Resource Guide to every state court judge that handles child welfare matters. We make ourselves available to answer questions; if a judge has a question on a case that ICWA applies to we have resources we can refer them to. We are trying to make it hard to fail to follow the ICWA, which has now been integrated throughout the child welfare court rules.”

Michigan Supreme Court Justice Michael F. Cavanagh, said, “ICWA has been on the books since 1978 and it’s a little ironic that here we are in 2010 starting to train people on the different requirements – ICWA is more demanding and explicit than state law.

“I firmly believe the whole process of our interactions with tribal courts greatly benefits the state courts. We can learn a lot from the different practices of the tribes. Our system, the state’s system, as in most states is adversarial. There has got to be a winner and a loser. Many instances in tribal courts that is not the predestined way the process works. There is a great effort to meet and achieve a common ground. There is probably a lot less rigidity in the procedures that are used. A tribal court judge may, for example, at a juvenile hearing say, ‘I want to talk to this boys grandmother and find out why he is acting this way.’

“The number of state court systems having contact with tribes is very minimal. If you were to go to Wayne or Oakland counties, two of our biggest counties with the largest load of judges, and ask them about tribal laws or constitutions they would look at you in askance. They just haven’t had the experience.”

Allie Greenleaf Maldonado, a tribal member and attorney for the Little Traverse Bay Bands of Odawa Indians, said the issues surrounding the proposed act are just as relevant today as they were when the act was passed 32 years ago. “We are going to have more compliance with the intent of the act if this proposed legislation is passed. What the act is attempting to do is minimize litigation, help get permanency for Indian children and fulfill the intent of ICWA by making sure tribes have a strong say in determining the best interest of their children.”

Maldonado wrote the first draft of the legislation, which the committee built on to come up with the Michigan Indian Family Preservation Act. She said the group wrote a law they felt would work in the system using resources available to them. “We took the day-to-day considerations of how the real world works and as a result this is a true working document. The proposed legislation is not a wish list, it is something that we believe is workable and can get past the opposition that we are anticipating.

“Seven years ago when I started practicing law in Michigan I would have classified this state as one of the worst in the entire country in terms of its compliance with the ICWA. With the changes that have been made and the concerted effort of a handful of enormously dedicated people, including a very enlightened director for the DHS and the State Court Administrative Office, I think Michigan has turned that completely around and is on the way to becoming one of the best states in terms of ICWA compliance. If this statute becomes law, I believe we can confidently say we are the best.”

Maldonado said one of the highlights of her career was when a judge of very high regard went on the record and apologized for not following ICWA. “The judge just didn’t know what the law said because the law has a lot of vagary in it. It took us going up to the Court of Appeals and overturning a termination of parental rights and having the Court of Appeals write an opinion to change his mind. The judge apologized and told the tribe he didn’t initially want to transfer the case to tribal court because he didn’t trust the tribe. He realized that was the kind of prejudice the ICWA was designed to combat. He had every intent of doing the right thing – it just wasn’t clear to him what that was until this case came down and he learned from it. It was very brave of that judge to apologize on the record and use the word prejudice. We helped change his perspective and educate him about ICWA. I think he is a hero in this state for being able to do that.”

Director of Native American Affairs with the State of Michigan DHS and a member of the Sault Ste. Marie Tribe of Chippewa Indians, Stacey Tadgerson, said, “There has been a lot of momentum within the past few years around the ICWA and really taking a look at its implications in our tribal communities and how different the tribal systems are from state systems. The proposed legislation helps spell out our requirements in full because the federal law created large generalized parameters and minimal standards for applying the ICWA. That left a lot of room for debate and a lot of grey area.

“We have 12 different tribes in the state with 12 different perspectives, plus the state’s perspective and what the state deems suitable for the safety, permanency and well-being for children in care. The parameters of the proposed legislation spell out what the states and tribes rights and responsibilities are and how the state and tribes can work together to maintain and uphold those.”

According to Tadgerson, there are more than 15,000 children in Michigan’s foster care system. Of those children, 205 are American Indian. “The Michigan DHS believes all children deserve a safe, loving and permanent home. For the past year, our department has undertaken significant reforms to make sure we are doing our part to make that happen. Our work with the State Court Administrative Office Statewide Task Force’s Tribal Court Relations Subcommittee reflects this commitment. I want to take this opportunity to acknowledge our hard working staff who strive to meet our mission to serve the state’s vulnerable children, adults and families.”

Prosecutor for the Sault Ste. Marie Tribe of Chippewa Indians, Eric Blubaugh said, “This new proposed law should be seen as the standard for all states. The Sault Ste. Marie Tribe of Chippewa Indians has used ICWA to intervene in cases involving our Indian children all over the country. The different interpretations – even between neighboring counties – highlights the need for this type of state-level legislation. The people of Michigan should be proud of this law and its positive effect on Indian families. It will ensure that Indian families in Michigan will be treated with the same standard of fairness in every state court proceeding.”

Information about ICWA can be found online at the Native American Rights Fund – www.narf.org/icwa – which publishes “A Practical Guide to the Indian Child Welfare Act.”