A historical and cultural perspective on ICWA

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A historical and cultural perspective on ICWA

• Why was ICWA necessary?

2
Everyone wants what is best for the child !

• Why are Indian children and families treated
  differently?

3
Understanding

• When someone says, we know what is best for your
  children, or
• I am from the government - I am here to help

4
Why trust is not the automatic response
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BIA started as part of the War Department
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Education as a part of the civilizing function
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Solution to the Indian Problem
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1878 the Hampton Institute, a school for freed
slaves, accepted Indian prisoners in an
assimilation experiment.
9
In 1879 Carlisle Indian School, patterned after
the military model, opened.
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By 1890 attendance was enforced through threats
of cessation of rations and supplies.
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Early approved curricula prohibited teaching
of reading/writing.
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Early approved curricula prohibited teaching
of reading/writing.
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Early approved curricula prohibited teaching
of reading/writing.
14
Many died of disease and broken hearts.
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Succeeded in breaking intergenerational teaching
in Indian communities. Language, religious
practices, cultural knowledge were targeted
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Generations learned to parent from BIA dorms
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Motto at BIA Schools

• Tradition is the enemy of progress
• A new tradition is created that teaches
  parenting from matrons on the dormitories

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We have seen how the federal government has
treated Indian families

• But how have States treated families in Indian
  Country?

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American Indian Policy Review Commissionof
theUnited States CongressMay 17, 1977
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Comparative Rates for Indian Children
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Comparative Rates for Indian Children
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Comparative Rates for Indian Children
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Comparative Rates for Indian Children
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Comparative Rates for Indian Children
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Comparative Rates for Indian Children
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Comparative Rates for Indian Children
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Comparative Rates for Indian Children
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Comparative Rates for Indian Children
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How does this happen?

• An exercise

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MIND THE LITTLE THINGS

• Springs are little things, but they are sources
  of large streams nails and pegs are little
  things, but they hold the parts of a large
  building together a word, a look, a smile, a
  frown, are all little things, but powerful for
  good or evil. Think of this and mind the little
  things. - Hillis

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Find the number of

• Fs

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MIND THE LITTLE THINGS

• Springs are little things, but they are sources
  of large streams nails and pegs are little
  things, but they hold the parts of a large
  building together a word, a look, a smile, a
  frown, are all little things, but powerful for
  good or evil. Think of this and mind the little
  things. - Hillis

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Zero to Three
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Four
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Five
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Six
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More ?
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MIND THE LITTLE THINGS

• Springs are little things, but they are sources
  of large streams nails and pegs are little
  things, but they hold the parts of a large
  building together a word, a look, a smile, a
  frown, are all little things, but powerful for
  good or evil. Think of this and mind the little
  things. - Hillis

40
MIND THE LITTLE THINGS

• Springs are little things, but they are sources
  of large streams nails and pegs are little
  things, but they hold the parts of a large
  building together a word, a look, a smile, a
  frown, are all little things, but powerful for
  good or evil. Think of this and mind the little
  things. - Hillis

41
MIND THE LITTLE THINGS

• Springs are little things, but they are sources
  of large streams nails and pegs are little
  things, but they hold the parts of a large
  building together a word, a look, a smile, a
  frown, are all little things, but powerful for
  good or evil. Think of this and mind the little
  things. - Hillis

42
MIND THE LITTLE THINGS

• Springs are little things, but they are sources
  of large streams nails and pegs are little
  things, but they hold the parts of a large
  building together a word, a look, a smile, a
  frown, are all little things, but powerful for
  good or evil. Think of this and mind the little
  things. - Hillis

43
MIND THE LITTLE THINGS

• Springs are little things, but they are sources
  of large streams nails and pegs are little
  things, but they hold the parts of a large
  building together a word, a look, a smile, a
  frown, are all little things, but powerful for
  good or evil. Think of this and mind the little
  things. - Hillis

44
MIND THE LITTLE THINGS

• Springs are little things, but they are sources
  of large streams nails and pegs are little
  things, but they hold the parts of a large
  building together a word, a look, a smile, a
  frown, are all little things, but powerful for
  good or evil. Think of this and mind the little
  things. - Hillis

45
MIND THE LITTLE THINGS

• Springs are little things, but they are sources
  of large streams nails and pegs are little
  things, but they hold the parts of a large
  building together a word, a look, a smile, a
  frown, are all little things, but powerful for
  good or evil. Think of this and mind the little
  things. - Hillis

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Another view of the impact

• When someone says,
• we know what is best for your children.

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IDENTIFICATION WITH THE AGGRESSOR
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Thematic Apperception test

• Good
  Bad
• Beautiful Ugly
• Smart Dumb
• Honest Dishonest

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Identification with the Aggressor

• Baseline
• Suicide rate of teenagers in U.S.
• Inner City
• twice as high
• Reservations
• higher
• Indian kids in non-Indian homes
• highest

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Identification with the Aggressor

• Baseline
• Suicide rate of teenagers in U.S.
• Inner City
• twice as high
• Reservations
• higher
• Indian kids in non-Indian homes
• highest

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ICWA
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Sec. 2the Congress finds(4)
that an alarmingly high percentage of Indian
families are broken up by the removal, often
unwarranted, of their childrenby nontribal
public and private agencies.
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Sec. 2the Congress finds(4)
that an alarmingly high percentage of Indian
families are broken up by the removal, often
unwarranted, of their childrenby nontribal
public and private agencies.
54
Sec. 2the Congress finds(4)
that an alarmingly high percentage of Indian
families are broken up by the removal, often
unwarranted, of their childrenby nontribal
public and private agencies.
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Sec. 2the Congress finds(4)
that an alarmingly high percentage of Indian
families are broken up by the removal, often
unwarranted, of their childrenby nontribal
public and private agencies.
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Sec. 2the Congress finds(4)
that an alarmingly high percentage of Indian
families are broken up by the removal, often
unwarranted, of their childrenby nontribal
public and private agencies.
57
Sec. 2the Congress finds(4)
that an alarmingly high percentage of Indian
families are broken up by the removal, often
unwarranted, of their childrenby nontribal
public and private agencies.
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Differences of Opinion

• Proposition The Indian child welfare
  system/tribal approach ought to be more like the
  state approach. Indian children should be
  treated just like all other children.
• But.
• 500,000 children in foster care in this country
• 19,000 will age out this year
• 60
• Homeless, in jail or dead

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Differences of Opinion

• Proposition Tribes should be providing the child
  welfare services without state assistance if they
  wish to assume jurisdiction
• But.
• Approximately 60 of state spending on child
  welfare is federal source or reimbursement
• Approximately 20 of tribal spending on child
  welfare is federal source or reimbursement

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Differences of Opinion

• Proposition The ICWA is federal law, adopted in
  in 1978, and is applicable to state courts
  dealing with Indian children
• But.
• Many judges do not understand, or even know of,
  the requirements of the ICWAor do not agree with
  the reasons for its enactment

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Differences of Opinion

• Proposition Tribes delay too long in
  participating in state child welfare proceedings,
  especially when making a decision to request
  transfer late in a case
• But.
• ?

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Differences of Opinion

• Proposition Tribes delay too long seeking
  permanency under ASFA, particularly when ASFA
  requires with exceptions the filing of
  petitions to terminate parental rights after 15
  out of 22 months in out of home care
• But.
• ?

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Understanding the purpose of ICWA is crucial to
interpreting and applying the law
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Differences of Legal Interpretation

• Existing Indian Family Doctrine Matter of the
  Adoption of Baby Boy L Kansas Supreme Court
  1982
• V. Opportunity to develop Indian identity In re
  Junious M Cal. Ct. App. 1983
• Baby Boy L implicitly overruled Mississippi Band
  of Choctaw Indians v Holyfield U.S. Sup Ct
  1989
• State court deciding if family of removal is
  Indian enough to warrant protection under ICWA,
  notwithstanding the definitions of Indian and
  Indian child in ICWA In re Crews Wa. Sup. Ct.
  1993

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Differences of Legal Interpretation

• Acknowledgement of paternity putative fathers
• ICWA Parent does not include the unwed father
  where paternity has not been acknowledged or
  established
• New Jersey according to state law written and
  timely acknowledgement
• Arizona simple acknowledgement and no formal
  process required

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Differences of Legal Interpretation

• P.L. 280 and the ICWA
• Wisconsin A.G. Opinion 70 Op. Atty Gen. Wis.
  237 (1981) Pub. L. No. 280 and non-Pub. L.
  280 Wisconsin Indian tribes have exclusive
  regulatory jurisdiction over child custody
  proceedings involving Indian children who reside
  or are domiciled within the reservation.

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Differences of Legal Interpretation

• P.L. 280 and the ICWA
• Doe v Mann, 9th Circuit filed July 19, 2005
• case of first impression for the federal
  courts, requiring us to reconcile P.L.280with
  the exclusive jurisdiction granted to tribes by
  ICWA
• ICWA does not provide tribe with exclusive
  jurisdiction

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Differences of Legal Interpretation

• Notice
• In any involuntary proceeding in a State court,
  where the court knows or has reason to know that
  an Indian child is involved, ...shall notify the
  parent or Indian custodian and the Indian childs
  tribe

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Differences of Legal Interpretation

• Notice
• Wisconsin In re Arianna R.G., 2003 specific
  allegations of heritage with an Ojibwa Tribe in
  Marinette, Wi, where BIA unable to ascertain
  tribe, was too vague and therefore no notice was
  required

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Differences of Legal Interpretation

• Notice
• California App Ct In re Nikki R, 2003 evidence
  that childs paternal great grandparents were
  Indian was sufficient to require notice

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Finally,

• The end
• But first one last story

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The Wolves WithinAuthor Unknown
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The Wolves WithinAuthor Unknown An old
grandfather, whose grandson came to him, angry at
a schoolmate who had done him an injustice, said
"Let me tell you a story. I too, at times, have
felt a great hate for those that have taken so
much, with no sorrow for what they do. But hate
wears you down, and does not hurt your enemy. It
is like taking poison and wishing your enemy
would die. I have struggled with these feelings
many times."
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The Wolves WithinAuthor Unknown An old
grandfather, whose grandson came to him, angry at
a schoolmate who had done him an injustice, said
"Let me tell you a story. I too, at times, have
felt a great hate for those that have taken so
much, with no sorrow for what they do. But hate
wears you down, and does not hurt your enemy. It
is like taking poison and wishing your enemy
would die. I have struggled with these feelings
many times."
75
The Wolves WithinAuthor Unknown An old
grandfather, whose grandson came to him, angry at
a schoolmate who had done him an injustice, said
"Let me tell you a story. I too, at times, have
felt a great hate for those that have taken so
much, with no sorrow for what they do. But hate
wears you down, and does not hurt your enemy. It
is like taking poison, but wishing your enemy
would die. I have struggled with these feelings
many times."
76
The Wolves WithinAuthor Unknown An old
grandfather, whose grandson came to him, angry
at a schoolmate who had done him an injustice,
said "Let me tell you a story. I too, at times,
have felt a great hate for those that have taken
so much, with no sorrow for what they do. But
hate wears you down, and does not hurt your
enemy. It is like taking poison, but wishing
your enemy would die. I have struggled with
these feelings many times."
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The Wolves WithinAuthor Unknown He continued,
"It is as if there are two wolves inside me one
is good and does no harm.
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The Wolves WithinAuthor Unknown He continued,
"It is as if there are two wolves inside me one
is good and does no harm. He lives in harmony
with all around him and does not take offense
when no offense was intended. He will only fight
when it is right to do so, and in the right way."
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The Wolves WithinAuthor Unknown But the other
wolf, ah! He is full of anger. The littlest
thing will set him into a fit of temper. He
fights everyone, all the time, for no reason. He
cannot think because his anger and hate are so
great. It is helpless anger, for his anger will
change nothing. Sometimes it is hard to live
with these two wolves inside me, for both of them
try to dominate my spirit."
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The Wolves WithinAuthor Unknown But the other
wolf, ah! He is full of anger. The littlest
thing will set him into a fit of temper. He
fights everyone, all the time, for no reason. He
cannot think because his anger and hate are so
great. But it is a helpless anger, for his anger
will change nothing.
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The Wolves WithinAuthor Unknown Sometimes it
is hard to live with these two wolves inside me,
for both of them try to dominate my spirit.
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The Wolves WithinAuthor Unknown The boy looked
intently into his Grandfather's eyes and asked,
"Which one wins, Grandfather?"
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The Wolves WithinAuthor Unknown The boy looked
intently into his Grandfather's eyes and asked,
"Which one wins, Grandfather?"The Grandfather
smiled and said, "The one I feed."
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Thank-you for letting me visit with you
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