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Tribal Child Welfare Legal and Judicial Issues Findings

Tribal communities are governed by multiple and overlapping systems of justice. Whether tribal, county, state, or federal jurisdiction, it becomes a difficult road to navigate for tribal child welfare and tribal court personnel. Essentially, unless otherwise provided by federal law, both federal and tribal laws apply to members of a tribe. However, in states that fall under PL 83-280, states have jurisdiction over criminal offenses committed by or against American Indian/Alaska Natives in areas officially designed as “Indian country” within that state. A majority of the tribes participating in this needs assessment administer their own tribal court and have access to an attorney either working directly for the child welfare agency or as a staff attorney for the tribe. Most courts allow lay advocates to practice as long as they are familiar with tribal law and have paid a fee. Some tribes utilize what is known as a Code of Federal Regulations Court; these courts are operated by the BIA. Most tribes involved in this needs assessment receive funding from the DOI and/or the Department of Justice, which partially fund the operation of their court systems. Most tribes also use their own funds to supplement federal funding with some tribes covering all tribal court costs.

Several participants indicated the use of traditional court systems such as Peacemaking Courts. These courts are operated by the tribe and follow the tribe’s customs and traditions in settling disputes among members. One interviewee stated that his tribal court consists of seven tribal council members who decide cases based upon council consensus.

Partnerships with Tribal Court

Participants shared that most tribal child welfare agency partnerships with tribal courts exist because the court is administered by the tribe and therefore is mandated to provide judicial services for the tribal child welfare agency. Thus the existence of a formal partnership with a tribal court occurs through child welfare and other codes that direct child welfare workers to utilize that court. Several participants indicated that they do not partner and/or meet with their tribal court beyond providing testimony in hearings, while others maintained they work well with their tribal court and did not elaborate on whether partnerships existed. Other participants stated that, although they do not have formal written agreements with their tribal court, they testify weekly, if not daily, which may signify the existence of informal agreements through constant interaction. Some interviewees have had difficulties in the past working with a tribal court but have since formed a partnership and worked through their differences.

I think they [the tribal court] have a long way to go before they’re going to be able to handle any kind of child welfare case. It’s a major matter of funding on the one hand, but it’s also I think they really have to be educated about what it’s going to take to take this jurisdiction on, and make sure that they have the resources and the staffing that are able to do it well. Or don’t bother, and leave it with the state until you can do it better.

Tribal Child Welfare Director

Often interviewees indicated being frustrated in their attempts to partner formally or informally with their tribal court through the expression of other challenges associated with practicing in their court. These frustrations consisted of:

  • Frequent turnover of tribal judges or tribal court staff that requires the child welfare worker to prepare for court in a different way than was originally established.
  • Frequent changes in tribal leadership that are often the catalyst for the above mentioned point.
  • Tribal court exists but is not able to hear cases due to insufficient funds needed to operate the court.
  • Lack of proficiency by court staff.

Partnerships with State/County Court

Several participants reported that partnerships exist with state/county courts through tribal/state partnership programs or court improvement programs. However, there are tribes that do not have partnerships of any kind with their state or county court systems. One interviewee believes that partnerships do not exist due to a lack of effort, by all concerned parties, to establish communication between the state/county court and tribal court. Lack of communication, the interviewee felt, is also the main reason why tribal court orders are not recognized by the state or county.

 Many participants shared that they are involved with state/tribal court improvement projects with the main purpose being to facilitate collaboration and improve court practice in child abuse, neglect, and dependency cases. Other participants felt that partnerships exist due to the close relationship fostered during previous employment with the county court. One participant who was previously employed with the local county court stated, “My relationship is all the time collaborating with the court.”

Some tribes can issue orders for American Indian/Alaska Native children; however, the state is mandated to be the lead agency on these cases and can issue orders that overrule the order issued by the tribal court. One interviewee in such a system described how they used the threat of state court involvement in order to get families to comply with court-ordered services.

Children’s Code

Most tribal child welfare codes, especially those that have been in existence for a decade or more, are what one interviewee called a “general child welfare code,” meaning the code was modeled after a state code or the result of a general code template received from the BIA during the early years of tribal child welfare development. Some Children’s Codes combine juvenile and child welfare processes. Many participants believed that their code needed substantial revision in order to make it more specific to the tribe’s culture and traditions despite the fact that their tribal child welfare codes have been revised to some extent and codified in the tribe’s code of laws through a tribal resolution process. In addition, several participants reported the tribe did not have a Children’s Code but are in the process of developing one. In addition, 46% of survey respondents identified code revisions as a critical need for their program, and 33% identified it as a moderate need.

Child Protection Team/Multidisciplinary Team

Although the actual name of the team may vary from tribe to tribe, the majority of interview participants identified the Child Protection Team (CPT) concept as the team most widely utilized in reviewing child welfare cases. Few participants identified a Multidisciplinary Team (MDT). However, when an MDT was discussed, it was correctly identified as a prosecution-oriented team, which signifies an understanding of team use. Depending upon the tribe, CPTs meet on a regular basis to review cases and ensure that children are protected. For example, participants indicated CPTs may meet once a week, once a month, or as one stated, “Often.” However, there are CPTs that meet only when there is a case to discuss.

Some participants stated their CPT needs more structure in order to operate effectively, and they could benefit from training regarding the roles and responsibilities of CPT members. One example was the presence of policy governing what the CPT can and cannot do and a list designating the types of cases having review priority (i.e., sexual or physical abuse cases before neglect cases). Also, participants felt it was important to have cohesive and enduring team membership. Another interviewee felt the team needed training about how to cope with “the things they hear and know and see,” which indicates that training was needed regarding how to cope with secondary trauma.

Many of the tribes that have a CPT reported a wide-ranging membership. Participants may remain constant or may come and go depending upon their individual schedules. However, in most tribal CPTs, a small core team always participates in reviewing cases and is committed to ensuring child safety. Tribal CPTs are generally composed of tribal child welfare staff, community members, tribal enrollment, law enforcement, tribal court staff, behavioral health staff, a social service director, the Federal Bureau of Investigation, the U.S. Attorney’s office, the BIA, county social workers, schools, CASAs, judges, attorneys, and prosecutors. Some tribal representatives also serve on county CPTs.

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