The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
When a child is removed from his or her home based on suspected abuse or neglect, the court steps in to make critical legal decisions affecting that child’s and family’s life. These decisions about a child’s safety and permanency—usually the responsibility of parents—are also the honor and responsibility of extended family members, community members, and tribal leaders when a child is an Indian child. Attorneys and judges practicing child welfare law must be competent in the law and best practice, including the Indian Child Welfare Act (ICWA). A great part of competency under ICWA is rooted in the uncommon expertise that can only come from the child’s tribe(s).
Working with the Indian child’s tribe helps attorneys, judges, and state agencies meet the letter of the law and ensures best practices and appropriate services are delivered to Indian families, thus supporting their successful reunification. Tribes are necessary to identify a child as an Indian child under ICWA,1 and they can intervene in or take jurisdiction of a case as necessary.2 Further, an Indian child’s tribe can help the state find or provide the best, culturally appropriate services; identify extended family and community members who can provide resources or placements; identify and provide qualified expert witnesses to inform the court about tribal cultural values about child rearing; and help state practitioners think outside the box and apply tribal cultural norms to state proceedings.
Learning the legal requirements of ICWA is vital to comply with federal law, but practitioners need to understand how states and tribes can work together to implement the law. This coordination is key to providing services that are culturally sensitive and preserve and improve outcomes for Native American families.
How States and Tribes Can Work Together
Coordinate around key case activities and share information.
One of the best ways to improve ICWA practice is for state and tribal workers to build strong, cooperative relationships. In some jurisdictions, state social workers will call tribal representatives to let them know formal notice will be sent regarding a child who may be a member or eligible for membership in their tribe. This gives the tribes the chance to verify the information immediately and provide a formal response quickly. In other locations, these relationships have led to state social workers collaborating with tribal social workers on case plans.
Much time is saved by working together. The tribal social worker will have information on available culturally appropriate services for families and children and much of the information to complete diligent searches for relatives and ICWA-compliant placements. In addition, if the case remains in state court and the child ends up being removed and no tribal placements are available, the tribal and state social workers can work together to help the child maintain strong family and cultural ties.
Work together to find qualified expert witnesses.
Many states have found locating a qualified expert witness (QEW) challenging, especially in light of the scant guidance in the new regulations. Practitioners are simply instructed that the QEW cannot be the caseworker regularly involved in the case and the state should contact the tribe or Bureau of Indian Affairs to locate the expert.3 However, the witness’s expertise should include “the prevailing social and cultural standards of the Indian child’s Tribe” regarding child-rearing practices.4 Although the regulations do not expressly say so, it will be almost impossible to find such an expert without working with the tribe. The tribe is in the best position to identify and recruit QEWs, although training them to testify may fall on the state.
In some jurisdictions around the country, tribes are teaming up with states to help state workers find QEWs.5 They do this by creating lists of people who have agreed to serve in this capacity and who are determined by someone in the tribe to be qualified. In addition to helping create the lists, tribes have also worked with states to create and provide QEW training so potential QEWs understand their roles and responsibilities.
Encourage tribes to share court representatives.
In a few states, local tribes have offered to assist tribes that are unable to send representatives to court.6 While this relationship is often created between tribes, states have also encouraged this practice and helped facilitate introductions between tribal representatives. By having a local tribal worker appear on behalf of the long distance tribe, it makes it easier for the tribe to exercise its right to intervene in the case and complete next steps. This promotes timeliness while remaining in compliance with ICWA requirements.
Ease burdens on tribal representatives.
States are assisting tribes by not placing additional burdens on tribal representatives. Nothing in ICWA requires a tribal representative to be law trained when appearing on behalf of a tribe. However, some state courts have been unwilling to allow the non-law trained representatives to appear in court, effectively preventing the tribe from formally participating. Most states have now discontinued this practice and some are formalizing it through court rule changes. Taking it a step further, the guidelines encourage7 and at least one state is already considering a court rule that would allow lawyers who are not licensed in the state where the hearing is being held to appear in court on behalf of a tribe in an ICWA hearing without having to find local counsel, or meet other “pro hac” requirements such as fees.8 Again, this makes it easier for tribes to intervene according to their rights under the law.
Benefits of State-Tribe Coordination
Provides unique services that strengthen Native children’s sense of identity and community.
Tribes provide a sense of community and identity for children who otherwise might feel lost in the system. The state system is often overburdened by the sheer number of cases that go through it each month. Working with tribal systems or transferring cases to the tribal court system can give the child access to programs and individualized attention that would not be possible in state programs. Many tribes have afterschool tutoring, sports programs, tribal libraries, grief counseling, and access to programs designed and funded for Native children to prepare for post high school life.
In addition, the children participate in traditional games and ceremonies, and learn their traditional languages. When a child has been removed from home, whether temporarily or permanently, the child often struggles to find a sense of belonging or stability. A tribe is uniquely situated and invested in helping children of their nation know who they are and to thrive as members of their tribe.
Creates conditions that improve outcomes and help Native children and families flourish.
Community commitment also leads to extraordinary outcomes. In one case, a boy who had been placed in the tribal foster system not only flourished as he regained his sense of identity in the community, but he discovered new talents and passions. Because of his speaking abilities and the insights he gained through reconnecting with his culture, he was given an opportunity to speak at a White House conference for Native youth in foster care. He is currently preparing to transition from foster care and travels around the country as a motivational speaker. He aspires to work at a national park that was created to tell his tribe’s story.9
Connecting with a tribe and accessing available services and supports also benefits parents. For many parents, the tribe’s support network can be the catalyst to make life changes that help them improve their situations. (See Unlocking the Benefits of Tribal Membership: Sasha’s Story)
Ensures Native children are raised in their culture.
In one case, a couple who had not been able to have children of their own was able to adopt three siblings. The social services department in the tribe tried to ease the children and the foster parents into the placement. The children visited the home several times to start developing a relationship with each other before the placement was finalized. The children now have a stable home, they are dancing in pow wows, and are being raised to know and love their culture. Through tribal community events, they also have retained a relationship with previous foster parents and with a sibling who was adopted by a different family. All of this was done through the tribe’s social services with state court oversight since the tribe lacked its own court system—an excellent example of state and tribal cooperation for the well-being of Native children.10
State and tribal systems do not need to be adversarial. Each system is designed to consider the best interests of children. ICWA protects the relationship of the child to both the biological family and the tribe. While there are additional legal requirements, developing strong relationships between systems can help ensure state systems are complying with federal law. In addition, tribal systems provide benefits, services, and a sense of identity for a child during a stressful and often painful time. State and tribal cooperation in implementing ICWA has proven benefits for the Native children and families who end up in state court systems. Such partnerships increase resources available to families while also making it easier for state judges, attorneys, and agencies to comply with ICWA.
1. 25 U.S.C. § 1903; 25 C.F.R. § 23.108.
2. 5 U.S.C. § 1911; 25 C.F.R. §§ 23.110, 23.111(d), 23.115.
3. 25 C.F.R. § 23.122.
5. E.g, “Tribal State Agreement,” February 22, 2007.
6. E.g., Minnesota American Indian Center, the American Indian Children’s Resource Center in Oakland, CA, and Ho-Chunk for the Winnebago tribe.
7. U.S. Department of the Interior, Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 2016, 8.
8. See, Michigan Supreme Court. “Proposed Amendment of Rule 8.126 of the Michigan Court Rules, ADM File No. 216-04, November 2, 2016.
9. National Indian Child Welfare Association. “Honor the Tradition of Strong Native Families.”
10. Passey, Brian. “Keeping the Culture.” The Spectrum, April 3, 2015.