Indian Child Welfare Act 

PUBLIC LAW 95-608, 25 USC Chapter 21

1. Introduction
2. ICWA has hurt Children and Parents
• Read their letters
3. ICWA has interfered with Parental Rights
4. ICWA was originally based on some false assumptions
5. The ICWA has frequently been supported by one-sided testimony
6. Possible Incentives for ICWA
7. Inherent Problems with the ICWA Law
   • - Qualified Expert Witness
   • - Prevailing social and cultural standards of the Indian community
   • - U.S. 14th Amendment
8. Necessary Legislative Changes to protect children and their Families
9. "Routine Cruetly" by Mr, Thomas Sowell
10. Scott Kayla Morrison
11. Roland Morris, Sr., Press Conference - May 2004                                                                                                                           
12. ICWA Documents:
    1. - U.S.C. ICWA TEXT  
    2. - ICWA Case Law
    3. - ICWA Legislative History

      

Article: March 29, 2007, Grand Forks Herald http://www.grandforksherald.com/opinion/

VIEWPOINT : Law could tear children from a ‘tribe' they love

- Our Advisory and Honorary boards are a mixture of tribal members and non-members from both the United States and Canada. They are birth parents, foster parents, adoptive parents, and grandparents of tribally enrolled children as well as non-tribal children. They are also pastors, teachers, politicians, writers, activists, administrators and business men.

The Indian Child Welfare Act of 1978 (ICWA)

Introduction

Deborah Maddox, acting Director of the BIA Office of Tribal Services in 1993, said, "the intent of Congress in passing the Indian Child Welfare Act was to protect Indian children from removal from their tribes and to assure that tribes are given the opportunity to raise Indian children in a manner which reflects the unique values of Indian culture."

According to West's Encyclopedia of American Law, the Indian Child Welfare Act (ICWA), "…intended to limit the … removing (of) Native American children from their tribe and family and placing them in a non-Indian family or institution. The act seeks to achieve these goals through…placing children…in a…home that reflects the unique values of Indian culture."

(ICWA) "seeks to protect the rights of the Indian child as an Indian and the rights of the Indian Community and Tribe in retaining its children in its society."  - House Report on the Indian Child Welfare Act

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Advocates of ICWA point to the devastation suffered by children of tribal heritage when, years ago, they were forcefully removed from the homes they loved and forced to stay at boarding schools. The trauma those children and families expereinced was, indeed, devastating.

However, today, some tribal leaders have been doing the exact same thing when they have removed children from the homes and environments they love, forcing them to live with people they barely know in Indian Country.

There is no inborn difference between persons of tribal heritage and other persons. Any emotionally healthy child, no matter their heritage, will be devastated when they are taken from their familiar homes and forced to live with strangers.

Even children of 100% tribal heritage will be devasted if taken from the only home they know and love, even if it is non-tribal, and placed into a reservation home they know nothing about.

The Full Text of the INDIAN CHILD WELFARE ACT OF 1978 (ICWA):

THE ICWA LAW:  PUBLIC LAW 95-608, 25 USC Chapter 21

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ICWA Has hurt Children and Parents.

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ICWA has interfered with Parental Rights

In 1989, the US Supreme Court declared in Mississippi Band of Choctaw Indians v. Holyfield that tribal jurisdiction preempted both state authority and the wishes of parents. The Court concluded an Indian tribe and an Indian child have an interest in maintaining ties independent of the interests of birth parents, and thus, "Congress determined to subject (voluntary) placements to the ICWA's jurisdiction ...because of concerns going beyond the wishes of individual parents." They then made the chilling statement, "These concerns demonstrate that Congress could not have intended to enact a rule of domicile that would permit individual Indian parents to defeat the ICWA's jurisdictional scheme simply by giving birth…off the reservation."

Therefore, whether a parent is four-quarter Indian or totally non-Indian, ICWA states, "… the Indian tribe shall retain exclusive jurisdiction…" and if a tribal entity requests, "…the (State) court…shall transfer … to the jurisdiction of the tribe…"

In essence, Congress has consigned our children to tribal government, and opting out is not an option. We could refuse to enroll our children into the tribe, but a child does not need to be enrolled in order for ICWA to apply. ICWA pertains to any child the tribe deems enrollable.

Thus, many more children and families are affected than even realize it. Tribal governments have the right to define their membership. This means they have a right to decide the percentage of blood needed for enrollment. Most tribal constitution require one-quarter blood quantum for membership, but some allow membership with as little as 1/64 blood quantum. Therefore, up to 3/4 or more (in some cases 63/64!) of a child's non-Indian heritage can be legally ignored by the courts, and tribal governments have been allowed jurisdiction over children with the smallest amounts of Indian blood.

The truth is, many tribaly enrolled parents have left the reservation because they don't feel it is the best place to raise their children. (According to the US census, almost 80% of those classifying themselves as Indians live off reservations.)

Steve Moore, a Staff Attorney with Native American Rights Fund, estimated that 1.96 million people of Indian ancestry live off the reservations. He said that puts the tribal courts at a disadvantage in custody cases. Turning a blind eye to individual rights, he further stated,

"There's been an obvious effort by state court judges to create loopholes and exemptions to the point that I believe Congress needs to take the matter up again."

and

"The bottom line is Indian children are the lifeblood of Indian tribes as a population base diminishes due to these cases."

There is no mention in the article as to why 1.96 million persons of tribal heritage have chosen to live off the reservation.

Most people in America enjoy the freedom to raise their children as they see fit, even if it is contrary to the way their extended family is raising children. Those parents also have the right to name a guardian for their children who will raise them in the manner they desire.  They can put that choice in their will and have those wishes honored.  Shouldn't the parents of tribally enrollable children have that right as well?

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ICWA was originally based on some false assumptions

   - The first assumption is that values within the Indian culture are unique, and the culture of non-Indian relatives and society is of less value. The Truth is - there are no unique value systems within Indian Country. There is nothing new under the sun. In addition, the value systems of all cultures, and every facet of a child's heritage, are valuable.

   - The second assumption, that tribal governments can retain "their" children, supposes that tribal governments have sovereign ownership of individuals, and that these individuals need to be under the jurisdiction of tribal government in order for traditional culture to carry on.  The Truth is - Tribal governments do not own our children. Tribal members are American citizens, entitled to life, liberty and the pursuit of happiness. Whether we are 100% Native American or 100% not, we parents should not be forced to make important life decisions based on what is best for tribal government. Additionally, tribal culture, or any culture, will exist as long as the people who love it carry it in their hearts and pass that love to their children. Government force does not preserve tradition; families do.

   - The third assumption is that all families and individuals of Native American heritage think, feel and desire the same things, and any person with a small amount of heritage is automatically better off within the Indian community. ICWA requires that "the prevailing social and cultural standards of the Indian community in which … extended family resides…"be applied in placement preferences." But not only where a third cousin might reside, the act states, "or with which …extended family members maintain social ties…," further degrading the parents right to choose where and how they want their children raised.

The Truth is - Humans desire choice and have time and again fought for the freedom to make those choices. That is just as true today as it has been any other time in the history. In America, we are proud of our democracy, equality, and the right all citizens have to make individual choices and live life to their fullest. We try to help other countries achieve the same. Are Native American citizens allowed less?

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The ICWA has frequently been supported by One-Sided Testimony

The Montana Supreme Court noted in Skillen v. Skillen, No. 96-520, MT 43, (1998) that "after extensive hearings" Congress found the ICWA was necessary.

But what is meant by an "extensive" hearing? Most Americans would assume it means "far-reaching," "thorough," all-embracing," and "evenhanded."  However, the 1978 testimony was not fully representative of the people the Act affects.

If these people were not represented, was the 1978 testimony fully thorough?  

.In 1996, an aide to Senator Max Baucus (D-MT) stated that parents and caregivers weren't invited to Senate ICWA Hearings because the Senators had already chosen who they want to hear, and they already had a full panel. That panel consisted of tribal leaders, adoption agencies, social workers, and lawyers representing the tribal governments. There was no one there to speak for opposing families. The aide, mentioning Rosy Parks and the number of people that participated in civil rights marches, went on to say that unless we could come up with a large number of people wanting ICWA changed, they had no interest in hearing what we had to say.

Please read our "Family Stories" section to learn more.

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Problems with the ICWA Law

Qualified Expert Witness

According to Chief Judge-Sisseton-Wahpeton Sioux Tribal Court, Director-Northern Plains Tribal Judicial Institute-University of North Dakota Law School*, three stages of ICWA contain a requirement of qualified expert testimony to support state court action - foster care placement, termination of parental rights and deviating from the foster care and adoptive placement preference due to the extraordinary needs of the child. 25 U.S.C. SS1912(e); 1912(f), BIA Guidelines, F. 3 at 67594. The failure to produced qualified expert witness testimony may vitiate any proceedings held in state court. See In re. K.H., 981 P.2d. 1190 (Mont. 1999); Doty-Jabbar v. Dallas County, 19 S.W.3d 870 (Tex. App. 5th Dist. 2000).    The ICWA does not define, "Qualified Expert Witness."

However, IN THE MATTER OF THE ADOPTION OF H.M.O. , No. 97-262, MT 175, (1998), it is stated "the Guidelines for State Courts; Indian Child Custody Proceedings (the Guidelines)", defines expert witnesses for ICWA purposes. Matter of M.E.M. (1981), 195 Mont. 329, 336, 635 P.2d 1313, 1318.

The Guidelines: D.4. Qualified Expert Witnesses

(a) Removal of an Indian child from his or her family must be based on competent testimony from one or more experts qualified to speak specifically to the issue of whether continued custody by the parents or Indian custodian is likely to result in serious physical or emotional damage to the child.

 (b) Persons with the following characteristics are most likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings:

(i) A member of the Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childbearing practices.

(ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childbearing practices within the Indian child's tribe.

(iii) A professional person having substantial education and experience in the area of his or her specialty.

44 Fed.Reg. 67584, 67593 (1979).

Despite the third category, H.M.O goes on to say:

33. .." courts have held that social workers must have qualifications beyond those of the normal social worker to be qualified as experts for the purposes of the ICWA. See, e.g., In re Elliott (Mich. Ct. App. 1996), 554 N.W.2d 32, 37 (citation omitted); Matter of N.L. (Okla. 1988), 754 P.2d 863, 868 (citations omitted). Those courts based their conclusions on the legislative history of the ICWA which requires "expertise beyond the normal social worker qualifications." See In re Elliott, 554 N.W.2d at 37 (citation omitted); Matter of N.L., 754 P.2d at 868 (citations omitted); see also House Report for the Indian Child Welfare Act, H.R. 1386, 95 Cong., 2d Sess. 22, reprinted in 1978 U.S.C.C.A.N. 7530, 7545. Based on these cases and legislative history, we hold that a social worker must possess expertise beyond that of the normal social worker to satisfy the qualified expert witness requirement of 25 U.S.C. § 1912(f).

34 As discussed above, Jackman's report contains no substantive information regarding her qualifications and experience other than that she was a social worker employed by the Department. On the basis of the record before us, we hold that the District Court abused its discretion in concluding that Jackman was a qualified expert witness for ICWA purposes.

QUESTIONS:

Wouldn't a witness be more qualified and expert in the well being of the child if the witness understood the community in which the child has been raised and the community within which the family exists, rather than the community in which the tribe exists?

Who is the Expert Witness testifying for?

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Prevailing social and cultural standards of the Indian community:

Exclusive jurisdiction by the tribe is scary enough for many foster and adoptive parents, but imagine how it feels for birth parents, both tribal and non, that have chosen to raise their children outside of the tribe.

If these parents should unexpectedly die, ICWA requires that “the prevailing social and cultural standards of the Indian community in which … extended family resides…” be applied in placement preferences." 25 USC 1915(d). There is no other race in the United States who are denied parental right of choice in this way.

The question arises, “What is referred to by social and cultural standards?”

This is not to say that reservations alone have problems of alcoholism and corruption. All of these problems can be found in any neighborhood, anywhere. But it does appear that on some reservations, these problems are a prevailing cultural and social standard.

So just what is Congress mandating when it states that social and cultural standards of the reservation be applied?

The problem is that federal government, based on faulty assumptions, is commanding certain children be raised under less than safe conditions.

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"Routine Cruelty"

by Mr. Thomas Sowell

October 30, 2001

 - Mr. Sowell is currently a senior fellow at the Hoover Institute in Stanford, Calif.                             

In a world where the media are ready to magnify innocuous remarks or a minor problem into a trauma or a disaster, there is remarkably little attention being paid to cruelties routinely inflicted on children by our laws and our courts. That cruelty is ripping children away from the only home they have ever known, to be sent away -- often far away -- to be raised by strangers.

Such drastic action may be necessary when children have been abused or neglected, but kids have been seized from loving homes where there has never even been an accusation of abuse or neglect. As with so many irrational acts, race and political correctness are involved.

One of the children who is currently being threatened with this fate is a little boy in California named Santos, who may be sent off to live on an Indian reservation in Minnesota, among people he has never known, speaking a language he does not understand. Moreover, the single woman who is trying to adopt him there has said that she plans to put him in day care, which he has never been in before. He has been cared for at home by a married couple since he was 3 months old. He will be 3 years old on Nov. 25.

How could such an insane situation have arisen? Easy. It is called the Indian Child Welfare Act. And it began, like so many catastrophes, with good intentions.

Back in 1978, Congress passed the Indian Child Welfare Act to prevent Indian children from being removed from their families and tribes by outside know-it-alls and social engineers. So far, so good. But, once a law is on the books, it means whatever the lawyers and the courts say it means. That is how little Santos got trapped in a nightmare.

Santos is part Indian, but neither he nor his biological parents lived on a reservation or among an Indian tribe. When he was born and began suffering withdrawal because of his mother's cocaine addiction, the authorities took custody of him. He was put into a foster home with a Spanish-speaking couple whom he now regards as his parents and who want to adopt him.

Santos' biological mother has shown very little interest in him -- and even that little bit of interest has not been reciprocated by Santos. He has hung up on her when she phoned and cried when she visited. The woman on an Indian reservation did not even know of Santos' existence until informed by the tribal council, which wants to claim him under the Indian Child Welfare Act. Six months later, she saw the little boy for the first time.

It gets worse. Two psychologists have become involved in the case. Shrink A has "spent approximately 10 minutes alone" with Santos, according to the California Court of Appeal in its ruling this past Oct. 19. She did not interview the couple with whom he has been living all this time, even though a Spanish-speaking social worker was available to enable her to converse with the boy's foster parents.

Nevertheless, Shrink A has decided that Santos would be better off being "moved to be with his tribe and his family" on a reservation in Minnesota. This strained definition of "family" is based on the fact that the woman on the reservation is a distant relative of his mother. Incidentally, Shrink A has never interviewed this distant relative either. Undaunted, Shrink A has said that Santos would not be "catastrophically damaged" by the change because Santos has not "bonded" with his foster parents, but has "bonded to his birth mother, who is unable to care for him." This strained definition of bonding is based on counting the time spent in his mother's womb, as well as the 9 days he spent with her after birth.

A second psychologist based his conclusions on what he had actually seen, rather than on such speculations. What he saw was that little Santos clings to his foster mother and became distressed when his foster father was asked to leave the room, crying "papa, papa." At another time, when Santos was with his foster father and Shrink B wanted to see the little boy alone, Santos became "clingy" with his foster father and "hugged him tightly while exclaiming 'papa, papa.'"

Little Santos has not yet been sent to Minnesota. The appellate court said that the "matter is remanded for further proceedings," which means a continuing cloud of uncertainty hanging over a little boy who has become a little pawn. How could anyone do this to him? Tragically, it has happened to many others.

    - Sowell, Thomas, Routine Cruelty, October 30, 2001.  Online document, available from http://www.townhall.com/columnists/thomassowell/ts20011030.shtml Accessed Monday, May 31, 2004.  Reprinted with permission.

Update: Santos was legally adopted in 2003 by the foster parents who had cared for him most of his life.  The attorney who fought so hard for them, interestingly enough, is Native American.

(Thank you very much to the reader who noticed and notified us that this update had been omitted)

Santos Case Law

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POSSIBLE INCENTIVES FOR ICWA

Tribal Government Funding?

Ms. Scott Kayla Morrison, a member of the Mississippi Choctaw Tribe as well as an attorney specializing in Indian law, wrote in 1998, “ICWA is a money-driven program for the tribes from three perspectives: 1) federal funds generated by tribal membership; 2) federal income to fund program jobs; and 3) federal funds to administer courts adjudicating ICWA cases.

- "First, each tribal member generates $5,000 (1992) for the tribal administration from the thirteen federal agencies funding Indian programs. The more members, the more federal funds. With no blood quantum [required], [some tribes allow] a person with as little as 1/2000th (to) be enrolled as an Indian. If an Indian child is adopted by non-Indians, the tribe loses $5,000 a year for the lifespan of the child.

- “Second, federal dollars fund the ICWA program for the tribe. This generates jobs for tribal administration directly through program funds and indirectly through administrative costs. Of every federal dollar allocated by Congress, 89 cents goes to administer the Bureau of Indian Affairs. The remaining 11 cents goes to tribal administration. The Choctaw administration is allowed to take 46%, almost half or 5.5 cents, for administrative indirect costs. The remaining 5.5 cents are used to administer programs like ICWA. The more membership to serve, the more money the tribe requests that generates more jobs and more indirect costs. Allowing adoption outside the tribe cuts into the pocketbook of tribal administration.

- “Third, one purpose of a tribal court or a Code of Federal Register (CFR) Court is to adjudicate ICWA cases. The amount of federal funds allocated to the court is based on the number of cases served by the ICWA program. The court program funds generate indirect costs and jobs.”

Congressional Indulgence of Tribal Government?

In 2002, Senator Max Baucus wrote in reference to a bill concerning federal recognition of tribes, "I am forced to disagree…this amendment…requires the implementation of…adversarial hearings at the request of any interested party." (full text available upon request)

In other words, Senator Baucus, a top recipient of Indian Gaming funds at the time, wasn’t interested in hearing any point of view other than that of the tribal government.

Two of former Senator Conrad Burns' aides (R-MT) also stated in meetings a year apart that Senator Burn's will not change any Indian law unless all 500+ tribes agree to it.

Since that time, it has been discovered that Senator Burns was deeply involved with lobbyist Jack Abramoff and funds coming from tribal entities.

Several other Senators have been linked to Abramoff and/or tribal funds

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Press Conference in Washington, DC

Roland Morris Sr., tribal elder and CAICW Board member, spoke about the Indian Child Welfare Act at the National Press Club in Washington DC, on Wednesday, May 12, 2004.  In a subsequent article on Friday, May 14th, Washington Times reporter Jennifer Lehner wrote, "the ICWA protects the interests of others over [Mr. Morris']  grandchildren,"  and "Mr. Morris said that once children are relocated to the reservations, they are subject to the corrupt law of the tribal government. Instead of preserving culture, he said, the tribal leadership uses the ICWA to acquire funds provided through the legislation.  He wants the power over his grandchildren's future to be taken away from the tribal governments and the family to have a say in the placement of the children."  

Ms. Lehner quoted Mr. Morris as saying that the law is "supposed to help children, but instead it helps tribal governments." 

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Scott Kayla Morrison, (1951 – 2000), attorney and author, grew up on her grandmother's allotment in the old Choctaw Nation, OK, where her family has been living since the Trail of Tears in the 1830s.

Morrison, a member of the Oklahoma Choctaw tribe, was the recipient of numerous awards, including the 1990 Phillip Hubbard Human Rights Award. 

Morrison graduated from the University of Oklahoma in 1987 with a Bachelor's degree in English and a minor in writing.  She then attended the University of Iowa College of Law where she was President of the American Indian Law Student Association.  While at UI, she was a research assistant to Professor Robert Clinton, a leading Indian law scholar, and did a large portion of the research for the Oklahoma Indian law section of Clinton's textbook: "American Indians and the Law." 

After graduating from the University of Iowa:

1990 - President of Choctaws for Democracy. 

1991 - Staff attorney and litigation Manager for the Yogesh Nanji, East Mississippi Legal Services on the Mississippi Choctaw Reservation. 

1992 to 1995 - Director of the Native American Office of Jobs in the Environment on a campaign organizing Indian communities on environmental issues. 

1994 - elected as a member-at-large to the national American Civil Liberties Union (ACLU) board of directors

1995 - , Began work with attorney Douglas Dry researching Bureau of Indian Affairs Administrative Regulations and drafting civil pleadings and appellate briefs.  She assisted in the case Douglas Dry v. Choctaw, which challenged the jurisdiction of the Court of Indian Offenses.  

1995 to 96 - Member of The Waste and Facility Sitting Subcommittee National Environmental Justice Advisory Council. 

1997 - Practiced in Choctaw tribal court

1998 - President of the Citizens Equal Rights Foundation.

1998 - Testified before the Senate Committee on Indian Affairs

June 1999 - Opened an office in Clayton, Oklahoma where she had a general practice and consulted on Indian law.

The May/June issue of 1993, Oklahoma Today named her in its "Who's Who in Indian Country" in recognition of her environmental work.  She was also named one of 15 "Women Who Make A Difference" in Minorities and Women in Business Magazine, January-April 1994 issue. In that issue, she was the only woman from Oklahoma and the only Native American profiled in the magazine.

She has also spoke at conferences and published several articles, including a collaboration with LeAnn Howe on the investigative article "Sewage of Foreigners: The Choctaw Survivors" (Federal Bar Journal & Notes, July, 1992), a detailed exposé that focused on contract negotiations by the Mississippi Band of Choctaw Indians to allow for toxic waste dumps on Choctaw lands in Mississippi.  Her short stories and essays appeared in publications including The Four Directions: American Indian Literary Quarterly and Turtle Quarterly (Native American Center for the Living Arts, Niagara Falls, New York), and in the anthology "The Colour of Resistance (1994).”  

She began her second book on Indian civil rights, called "Nazis and the Indian Mafia," which addressed government policies, reservation scams and scandals and the corruption legacy of the U.S. Department of Interior's Bureau of Indian Affairs, but it is unclear if this book was ever published.  

In the fall of 1994, Morrison, was elected as a member-at-large to the national American Civil Liberties Union board of directors.  She was the third member-at-large director elected from Oklahoma in ACLU history, and served a one-year term. She was voted on by all ACLU members from across the country.

"I was thrilled when I was nominated for the national board, and then elected," said Ms. Morrison. "ACLU, with its history in protecting civil rights, has often left out the first Americans. Hopefully, now I can work to begin the shift to help Indians in their civil rights struggles."

Civil Rights and the Indian Child Welfare Act were two areas of particular concern. 

She was a member of the Oklahoma and Mississippi Bar Associations, the U.S. District Court for Eastern Oklahoma, U.S. Court of Appeals 5th and 10th Circuits, and the Oklahoma Choctaw CFR Court.

   Scott Kayla died tragically in August of 2000.

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CHRISTIAN ALLIANCE FOR INDIAN CHILD WELFARE

PO Box 253, Hillsboro, ND 58045 - 0253

writeus@caicw.org