Indian Child Welfare Act Findings

Services related to ICWA cover children who are enrolled tribal members or those who are eligible for tribal membership, yet are domiciled off-reservation or outside the boundaries of the tribal nation (e.g., those living in metropolitan areas or smaller cities). Tribal child welfare programs, therefore, are serving in some manner the children who live within and outside the tribal community. Although a number of tribes have workers dedicated to handling ICWA cases, other tribes do not; still others have an ICWA committee that reviews and makes recommendations to the tribal child welfare program about which cases to address and how.

ICWA work has the potential to strain the workforce and budget capacity of tribal child welfare programs severely. Tribes, even those with workers specifically dedicated to ICWA cases, frequently report that they are “overwhelmed” with ICWA notifications that may come from any one of the 50 states or from hundreds of counties across the country. However, tribal child welfare programs, in their commitment to keeping children with family and maintaining children’s cultural connections, frequently strive to address as many ICWA cases as possible by intervening as a party in state court cases or by transferringjurisdiction of cases back to the tribal court. ICWA practice may also require workers to travel extensively, both within and out of state.

ICWA work is time consuming by nature. For example, ICWA notifications require that workers undertake a process that involves, at a minimum,

• Working with the tribal enrollment department to determine a child’s enrollment status;
   
• Notifying the tribal legal department that a child has come into the custody of a state or county;
   
• Sending a letter back to the notifying party if a child is not eligible, or if they are eligible, locating and preparing a cultural-expert witness;
   
• Working with the tribal attorney or court to prepare motions for intervention and/or transfer of jurisdiction; and
   
• Identifying and contacting relatives if foster placements are needed.

In addition, ICWA practice requires that tribes track cases and maintain case information; not all tribes have an adequate process for accomplishing this. Furthermore, ICWA workers not only practice at a tribal level, but must also be prepared to appear in tribal and state or county courts, as well as collaborate with state/county child welfare departments and at the level of state policy and practice review. Thus tribal ICWA work requires that tribal child welfare programs have staff that are trained and experienced in all these areas.

Compliance with ICWA provisions, on the part of states and counties, remains a problem in some of the jurisdictions, even more than 30 years after the passage of ICWA (Bussey and Lucero 2005; Fletcher, Single, and Fort 2009). The most problematic compliance aspects appeared to be not receiving notifications from states or counties—or not receiving them in a timely manner; failure of these jurisdictions to honor ICWA foster care and adoption placement preferences; and jurisdictions not recognizing cases as falling under ICWA or acting in a way that conveys they are “just not going to do it.” The following subsections will discussspecific issues and needs regarding ICWA from the needs assessment, but a brief summary is provided in Table 7.

Table 7. Summary of Tribally Identified Issues and Needs in ICWA Work

Indian Child and Welfare Act Collaboration with States and Counties

Many of those interviewed felt that, in general, state/county workers did not understand or correctly interpret ICWA, and that this created a barrier to collaborating on ICWA cases successfully. Respondents from the general survey rated that that most critical ICWA T/TA need was training for state/county child welfare staff (see Table 8). In addition, interviewees often viewed state/county workers as not accepting the need for ICWA and as lacking awareness of important cultural aspects and tribal processes, such as enrollment. Tribal child welfare program staff shared in the interviews that the state/county workers with whom they had worked on ICWA cases had had little, if any, prior experience with these types of cases. However, in states with a number of tribes, state or county workers tended to be more knowledgeable and experienced about ICWA than were workers in states with few tribes. A number of states were reported to have a staff person dedicated to ICWA cases within their child welfare departments. Although, tribal child welfare representatives shared that having state staff dedicated to ICWA did not always lead to better collaboration.

Table 8. Critical ICWA Training Needs of Tribal Child Welfare Programs from General Survey

A number of tribal workers and court personnel reported that they felt that tribal representatives were not respected as professionals by state workers and courts. They perceived that state child welfare departments and state courts viewed tribal attorneys and social workers as untrained, lacking credentials, and present simply to create stumbling blocks that would cause the case to stretch on.

This attitude was especially troubling to tribal child welfare representatives because, for the most part, tribal child welfare directors, workers, attorneys, and judges feel that they are knowledgeable about ICWA and child welfare best practices. When things were seen to have gone well in the collaboration between state and tribe, interviewees felt that the state had sent a timely ICWA notice; state and tribe were in agreement regarding an identified family placement; and the state court had not objected to the tribe’s motion for transfer of jurisdiction.

It seemed to many tribal participants as if states and counties were not interested in collaborating with tribes on ICWA cases, or that they did not follow up on their statements indicating that they wanted to work with tribes. However, state/county child welfare staff who participated in this needs assessment were likely to feel that they were doing a good job of collaborating. These staff often reported that they notified tribes that they had a Native child in custody; collaborated with tribes in case planning; partnered with tribes in assisting non-Native foster parents efforts to maintain children’s cultural connections and involvement; and felt their processes and procedures in working with tribes were working adequately.

Unlike many of the tribal interview participants who felt that states or counties did not do a good job of notifying the tribe and including them in cases, state/county staff members who were interviewed perceived that tribes considered themselves to be informed participants in state/county ICWA cases. This difference in perspective warrants further exploration because this needs assessment focused on tribal representative perspectives, and only state/county stakeholders associated with the 16 tribes that participated in the onsite portion of the assessment were interviewed.

Indian Child and Welfare Act in State and Tribal Courts

In general, tribal child welfare representatives had experienced a wide range of knowledge of ICWA on the part of state and county courts. Similarly, some tribal participants reported that their tribal court judge and tribal attorney were quite well versed in ICWA, while others had concerns in this regard. Counties in which tribes were located were often seen to be more amenable to ICWA, especially transfers of jurisdiction, with some tribal courts and judges reporting that they had encountered the most resistance in areas that were unfamiliar with tribes. Tribal participants, for the most part, have seen a difference in case outcomes, depending upon whether a case was heard in state or tribal court; outcomes judged as more positive were in those cases handled by the tribal court.

Transfers of Jurisdiction

Transfers of jurisdiction from state/county courts to tribal courts, a provision of the ICWA, were discussed by many interviewees. Tribal participants reported that they often transferred cases in order to give families more time to complete requirements and to give tribal child welfare workers more opportunities to assist families in ways that were believed to be more culturally appropriate. Tribes also commonly transferred ICWA cases in order to avoid state courts adopting children away from family, tribe, and community. Tribal participants felt that their tribes had been generally successful in facilitating the transfer of cases, although some waited until they discerned that things are not going well with the case at the state/county level before transfer to tribal court was requested.

Availability of tribal resources or the tribal capacity to provide services was a major consideration in whether a tribe requested a transfer of jurisdiction. When tribes did not request transfers of jurisdiction, it was often because they could not provide the services needed by a child. Also, although physical relocation of a child is not required when tribal courts take jurisdiction, tribal judges or child welfare staff may not request transfers if they feel that it would be too disruptive to move a child who has never lived on the reservation to a new environment.

Findings suggest that tribes, states, and counties want to work together to identify and resolve potential issues before they occur. Many participants report a lack of jurisdictional disputes between the county and the tribe and describe proactive steps are taken toward alleviating jurisdictional issues before they occur. For example, one tribe utilized the services of a prosecuting attorney in the county in which their tribal lands are located in order to assist in drafting the tribe’s child welfare code. The interviewee stated that this “turned out to be a good thing” when describing the lack of jurisdictional issues and positive relationship between the county and the tribe. Another interviewee stated, “I can’t even recall the last case where there’s been an issue.” Another participant shared that his tribe gave jurisdiction to the state through an agreement, and, therefore, because the state is handling all of their child welfare cases, no disputes exist.

When there are objections to transfers of jurisdiction, these were believed to stem from the state/county attorney or guardian ad litem (GAL), including not understanding why a tribe would be interested in a child who had not grown up on the reservation; fear that child’s rights would not be honored by the tribal court; fear that the tribe would simply return the children immediately to the parent(s); and fear that the child would be moved, in cases in which the judge or GAL had a particular non-Native family that they wished to have adopt the child. Although several tribal judges reported that they had never seen a state court decline a transfer of jurisdiction, other tribal court representatives felt that the current economic recession now encourages states to transfer jurisdiction more readily as a cost-saving measure.

Interview participants recounted the time wasted in trying to ascertain which jurisdiction is responsible to respond to situations that are often at a crisis level. Further, serious problems can result when tribal officers are unable to enforce laws against non-Natives and must wait for a county sheriff or some other law enforcement official with jurisdiction to respond. In addition, participants described feeling like they were treated unfairly in the state court system by recounting stories of how they were required to establish their competence before they were allowed to testify or practice in the state court system.