ICWA establishes procedures that must be followed and rights that must be afforded by state courts when determining temporary (foster care) or permanent (adoption) placement of Indian children. The following is a brief summary of these procedures and rights, all of which are discussed later in this chapter.
- If the Indian child is domiciled on an Indian reservation or has been made a ward of the tribal court, the tribal court has exclusive jurisdiction over the child in all custody matters. State courts may not adjudicate these cases.
- If the child is domiciled off the reservation, the state and the tribal court has concurrent (shared) jurisdiction. Should a custody proceeding be initiated in state court, the court must notify the child’s parents and tribe, and they each have a right to intervene in the proceedings. If either the tribe or a parent requests it, the state court must transfer the case to tribal court unless a parent objects or good cause exists to deny the request.
- If the case remains in state court, the court may not terminate parental rights without proof “beyond a reasonable doubt” or (place the child in foster care without “clear and convincing evidence”) that continued custody by the child’s family “is likely to result in serious emotional or physical damage to the child.
- If the child’s parents are indigent, they have a right to a court-appointed attorney, and separate counsel must be appointed for the child when the best interests of the child require it.
- Before a state court may place an Indian child in a non-Indian adopted home, the court must give sequential placement preference to, first, the child’s extended family, second, to other members of the child’s tribe, and third, to other Indian families, unless good cause exists to ignore this placement hierarchy. A similar hierarchy is imposed in foster care placements.
- If a state court’s placement of an Indian child violates ICWA, that placement is subject to invalidation upon petition of a parent or custodian of the child or by the child’s tribe.
- Tribal court custody decisions are entitled to the same “full faith and credit” as state court custody decisions, meaning that they normally must be respected and enforced by other courts.
- The state must keep accurate records of all Indian children placements to which ICWA applies and make those records available to the federal government and the tribe. In addition, when the adopted Indian child becomes 18 years old, the state must provide the child upon his or her request with the names and tribal affiliation(s) of the child’s biological parents.
As these procedures and rights reflect, ICWA creates a dual jurisdictional system that favors the tribe. When the child lives on the reservation, state courts have no jurisdiction to determine the child’s custody. When the child lives off the reservation, tribes and states have concurrent jurisdiction, but jurisdiction presumptively lies in the tribe because the state court must transfer the case to tribal court upon request of the tribe or one of the child’s parents, except in limited circumstances. ICWA, in other words, “establishes a preference for tribal court jurisdiction.” Moreover, even when a case remains in state court (as it can in some situations), ICWA allows tribes to intervene in the proceeding, reflecting Congress’s conclusion that state courts are more likely to make proper placement decisions if tribes have an opportunity to inform the court as to the tribe’s social and cultural values.
Thus, state courts are placed on notice by ICWA, as the Montana Supreme Court stated in 1998, “that they are, in fact, a significant part of the problem regarding the high number of improper Indian placements, and that “tribal courts are uniquely and inherently more qualified than state courts to determine custody in the best interests of an Indian child.” ICWA was enacted, the South Dakota Supreme Court observed in 2005, to assist “with our responsibility to promote and protect the unique Indian cultures of our state for future generations.”
So, If I haven’t already, I will be posting excerpts from Children of the Dragonfly: Native American Voices on Child Custody and Education.
As I said before, the adopting out of Native American and First Nations children into non-native homes was and is (in some areas) a very large epidemic. It’s an issue that doesn’t get talked about too often. I’ll be posting excerpts from this book as a means to promote discussion around this topic (once again) and for folks to learn about it.
I will begin with posting information about specific points in and about Native American/First Nations history to bring focus and a background understanding to the stories that will follow. ‘Children of Nature, Children of the State’, ‘Education’ (Boarding School/Residential School), and ‘Indian Child Welfare’ will be the first three excepts. They will build upon each other and will shed light to a history folks may not know. I encourage everyone to read these excerpts along with the stories written as personal accounts, or stories based off of personal accounts that Native people from all over North America have written.
Not all of these stories are light hearted as the history of both Boarding/Residential Schools and the Indian Adoption Project era that followed (as part of the continuation of genocide) are not light-hearted subjects.
However, I hope that you will read these as a means to learn more history, see the perspective of Native folks, and perhaps gain a deeper understanding of why stereotypes of native people and cultural appropriation is a big deal (though these will not directly speak to that, however it’s good to know this info to ‘connect the dots’ on that sort of thing).
“Parental conduct or home conditions that appear innocent when the parents are affluent are often considered to be neglectful when the parents are poor. A whole host of common circumstances can trigger an investigation of poor parents. As a former caseworker in New York City’s Administration for Children’s Services (ACS) described her clients, ‘If you are poor and if you have ever had problems with the law, if you have ever been involved in a domestic violence dispute, if you took your child to the emergency room after an accident, if you have ever used drugs, if your children have problems in school, if you have ever been homeless, ACS has been a part of your life.’ Several studies have found that poor children are more likely to be labeled ‘abused’ than children from more affluent homes with similar injuries. For example, an investigation of suspected cases of child abuse referred by Boston hospitals discovered that ‘the best predictor of removal of the child from the family was not severity of abuse, but Medicaid eligibility.’”
Dorothy Roberts, Shattered Bonds: The Color of Child Welfare (via thecurvature)
Having grown up in affluent white conservative evangelical churches - a lot of rich white people are abusing their kids who will never, EVER have their children taken away from them - because they are rich and white.
I remain convinced that white privilege is why my ex’s mother was able to keep her kids despite them being found repeatedly wandering the streets of their town in the middle of the night. She was educated, attractive, & incredibly abusive to the point that the kids often tried to avoid all contact with her despite the oldest only being 11.
“The racial imbalance in New York City’s foster care population is truly mind-boggling: out of 42,000 children in the system at the end of 1997, only 1,300 were white. About 30 percent of the children who live in New York City are white. Yet white children make up only 3 percent of its foster care caseload. Less than 24 percent in foster care are Latino and the vast majority — 73 percent — are African American. Clearly, child welfare authorities consider foster care a last resort when it comes to white families.
Black children, on the other hand, are separated from their parents with relative ease. One out of every twenty-two Black children in New York City is in foster care. The system’s grasp is even tighter on poor Black neighborhoods, such as Central Harlem, where one out of ten children has been placed in foster care. This means that in every apartment building in Central Harlem, we could expect to find at least one family whose children are in state custody. This is a far cry from the more reasonable odds for white children — only one out of 385. Black children are ten times more likely to be placed in foster care in New York City than white children.”
Dorothy Roberts, Shattered Bonds: The Color of Child Welfare (via notime4yourshit)
When my ex filed the phony abuse reports against me (long story short, this was his idea of a way to get custody & stop paying child support), they came to my then 3 year old son’s preschool intent on taking him into custody immediately. Fortunately the report detailed serious bruises which didn’t exist at all. Plus the school’s assistant director had some experience with DCFS & she insisted that they interview kiddo in the building or go get a warrant. They interviewed him, quickly figured out he’d been coached (badly, since he could only remember part of the story), and after a visit to my home & checking with his pediatrician they closed the case. I got through it, but it was clear to me throughout that it was my ex’s stupidity that kept my kid from being taken by the system. If it hadn’t been such a blatant misuse of the system I don’t know that they wouldn’t have taken kiddo from me. I was black, single, living in the projects (see the aforementioned child support which wasn’t getting paid & still isn’t), and getting over cancer. The social worker even made comments about how amazed she was at the cleanliness of my house & the amount of healthy food in my fridge. They expect us to be bad parents so any deviation from the white suburban “norm” can have dire consequences for parents of color or lower economic means.