- California is home to 107 federally recognized Tribes
- More Native Americans live in California than in any other state
- Furthermore, the majority of the Native Americans living in California are from tribes located outside of California
This creates a unique and diverse Native American Community in California that unfortunately remains invisible to most non-Indian people.
Disproportionality of Native American Children in Care:
Today, in California, Native American children are still vastly over-represented in the California child welfare system compared to other populations. Native American children are the second highest over-represented population in the system.
Tribal Court & Tribal Government
Tribes are sovereign governments with the ability to govern their members independent of the state or federal government in many areas of law. The sovereign rights and jurisdiction that tribes have was not given to them by anyone, it is inherent, it pre-dates the establishment of the united states and tribes fight to retain and in some cases regain as much sovereignty as they can. Some tribes have their own courts, police force, social service department, legislative body etc. Each tribe’s government is different and there are over 500 tribes within the U.S. boarders that are recognized by the federal government.
What is a Tribal Court?
A tribal court, for the purposes of the ICWA is a court with jurisdiction over child custody proceedings and which is a court established and operated under the code or custom of an Indian tribe, or any other administrative body of a tribe which the tribe has given authority over child custody proceedings. Tribal courts may look very different from what you may be used to in state court. Tribal court proceedings may take place in a conference room, the judge may not have any formal legal training, and in fact there may not be any lawyers involved at all. In contrast some tribal courts are just as formal as any state or federal court. Every tribe is entitled to establish a court that reflects what they think will best serve their tribal community.
There are tribal courts in California. They range in style and size just as the tribes in California do. Many of them are only in session part-time. Some are consortium courts that are shared by several tribes. Some only hear certain types of cases for example housing or child welfare. There are also many tribes outside of California that have courts.
Tribal Court v. State Court: The main difference between tribal courts versus state courts from a CASA perspective is that if a case is transferred to tribal court and the Tribe doesn’t have a CASA program with a transfer protocol with the program you volunteer with, you most likely will not continue as the child’s CASA once the case transfers to Tribal court. The reason for this is that tribe’s and their courts have their own laws and procedures that can differ from the state laws and procedures you have been trained in as part of your CASA training. Additionally, many tribal courts serve a much small population and thus the need for a CASA program may not be as great as in county courts in California.
Tribal Sovereignty and Tribal Jurisdiction
Over the years, Congress has taken the right to govern certain areas of law (to varying degrees) away from tribes and given this right to govern or “jurisdiction” to either the federal government or the state government. Tribes have retained any jurisdiction that was not expressly taken from them by Congress. Jurisdiction over Indian children in California is explained below:
State Court Jurisdiction – Tribal Intervention
The Indian child’s tribe and Indian custodian have the right to intervene at any point in an Indian child custody proceeding in state court. The tribe may intervene either orally or in writing. The tribe may designate anyone they want to serve as their representative. The person may be an attorney (at the tribe’s expense), an employee of the tribe who may or may not be Indian, or anyone else the tribes designates. If the tribe intervenes in the case they are a party and should be afforded all the rights and courtesies of any party in the case.
In general a tribal court has exclusive jurisdiction over proceedings involving Indian children who reside or are domiciled on the tribe’s reservation, or are wards of the tribal court, regardless of domicile or residence.
Most tribes in the United States have exclusive jurisdiction over children residing or domiciled within the reservation. Tribes in California do not exercise exclusive jurisdiction over juvenile matters but do have concurrent jurisdiction as discussed below.
In 1953 Congress enacted what is commonly known as Public Law 280 or P.L. 280. Congress, via P.L. 280 delegated to some states, including California, partial jurisdiction over Indian reservations located within the state’s borders. This provision take exclusive jurisdiction from Tribes in California over juvenile matters, but tribes in California still have concurrent jurisdiction.
What this means is that tribes in California have “concurrent” or shared jurisdiction over child welfare matters arising on the reservation. If the tribe has a tribal court, they may initiate proceedings in tribal court over these matters.
Transfers from State to Tribal Court
The child’s tribe, either parent, or the Indian custodian, may petition the court (orally or in writing) to transfer the case to the tribe’s court. Absent any of the above circumstances, the state court must transfer the case unless the court finds good cause not to transfer. Socioeconomic conditions and the perceived adequacy of tribal social services or judicial systems may not be considered in a determination that good cause exists.
Connecting with Tribes
Click here for a list of Federally Recognized Tribes courtesy of National Congress of American Indians (NCAI).
Tribal CASA Programs
There are approximately 15 Tribal CASA program nationwide. The majority of these programs operate as dual jurisdiction programs that serve the county court and have a unit that serves the tribal court. At least one of these programs serves one county court and two tribal courts. This model wherein a tribal court partners with an existing local CASA program to create a tribal unit to serve in the tribal court is very practical for tribes who want CASA in their courts but for whatever reason do not want to create their own separate CASA programs. The cost of running an independent program is always a consideration for any program to be successful and utilizing an existing CASA program is an efficient way of providing advocates to children in tribal court.
In the end, through lots of hard work and innovation, the tribal CASA programs have success in recruiting and training CASA volunteers to serve in the tribal courts, despite economic barriers that they have had to overcome.
Indian Child Welfare Act (ICWA)
The Indian Child Welfare Act, often abbreviated as ICWA, is a federal law that was enacted by Congress in 1978. This law establishes the minimum federal standards that must be applied in state child custody proceeding involving Indian children. The ICWA acknowledges and implements the child’s tribe’s right to intervene and participate in state child custody proceedings. The ICWA acts as the federal government’s method of ensuring that state governments honor the political standing that tribes have in the United States.
What is ICWA?
The ICWA applies to any state court proceeding involving an Indian child that may result in a voluntary or involuntary foster care placement; guardianship placement; termination of parental rights; or voluntary or involuntary adoptive placement. This includes all proceedings under WIC §300 et. seq. and WIC §600 et. seq. when the child is in foster care or at risk of entering foster care.
Senate Bill No. 678 (“SB 678”) is a piece of California legislation that was signed into law in 2006. This law amended several sections of the California Welfare and Institutions Code (“WIC”), the California Probate Code (“Probate Code”) and the California Family Code (“Family Code”). SB 678 codified what is required in cases involving Indian children in California.
Click here to take a look at a great ICWA Summary courtesy of the National CASA Association.
Click here for the complete text of ICWA courtesy of National Indian Child Welfare Association (NICWA).
History of ICWA
Indian Boarding Schools
As yet another attempt at assimilating the Indian population into the mainstream population, the federal government, beginning in 1879, funded and authorized the Indian Boarding School System. The schools were run by Christian Missionaries, despite the United State’s policy of separation of church and state. In advocating for the use of Christian teaching and influences in boarding schools by use of Christian educators and missionaries, Indian Commissioner Price had this to say in 1882:
“If we expect to stop sun dances, snake worship, and other debasing forms of superstition and idolatry among Indians, we must teach them some better way…the establishment of industrial schools, where the thousands of Indian children now roaming wild shall be taught to speak the English language and earn their own living, will accomplish what is so much desired, to wit, the conversion of the wild roving Indian into an industrious, peaceable, and law abiding citizen…”
The motto of the boarding schools was “kill the Indian, save the man.” That was what the schools attempted to do. Children who attended the boarding schools ranged in age from 5 years old to 21. Children were taken from their homes on reservations by bribery, persuasion, fraud, threats and force. Children who attended were banned from speaking their language, practicing their religion, and wearing their traditional clothes and hairstyles. There were given a new, English name in place of the name they had been given by their families. The end result for many students was loss of culture, loss of intergenerational family connection, internalized low self worth, physical and sexual abuse and for some, death. The trauma experienced by Indian families as a result of the boarding schools is still felt in the Native American community.
The Indian Adoption Project
The Indian Adoption project was funded by the BIA and administered by the Child Welfare League of American from 1958 through 1967. The purpose of the project was to remove Indian children from poverty stricken Native American communities and place these children for adoption into non-Indian homes. Although the child welfare policy of the day was, “matching” or pairing adoptive homes and children placed for adoption by race/ethnicity, an exception was made for Native American children in order to provide the possibility for a better life for these children by placing in non-Indian homes. “This was the first national effort to place an entire population transracially and transculturally.”
Hundreds of children were “adopted out” of the Native American community directly through this project. Countless more Native American children were adopted out via state child welfare agencies and private adoption agencies following the model of the Indian Adoption Project. In 2001 the Executive Director of the Child Welfare League of America affirmed the agency’s support of the ICWA by stating: “No matter how well intentioned and how squarely in the mainstream this was at the time, it was wrong; it was hurtful; and it reflected a kind of bias that surfaces feelings of shame.
Congressional Investigation Child Welfare Practices Relating to Indian Children and Families
Historically Indian children, as recently as the 1950’s, 1960’s and 1970’s, were being removed from their tribal homes and placed in non-Indian foster and adoptive homes and institutions at rates disproportionally higher than federal and state averages. In the majority of the cases where Indian children were removed from their homes, approximately 99%, the basis for the removal were vague standards such as deprivation and neglect, only in about 1% of the cases were Indian children removed for alleged “abuse”. Social workers and adoption agencies perceptions of what are appropriate child rearing practices did not align with tribal social and cultural norms. Thus, Indian children were being removed from their families and placed into non-Indian homes at disproportionally high rates based on cultural bias against tribal child rearing practices.
In the 1970’s, at the urging of the Native American community, Congress formed a task force to investigate these practices. In 1976, the American Indian Child Welfare Review Commission issued a report which included the following statistics for California.
Indian Children Placed for Adoption:
- 1 out of every 26.3 Indian children has been adopted.
- The adoption rate for non-Indian children was 1 out of every 219.8.
- Thus, there were 8.4 times (840 %) as many Indian children in adoptive homes as there were non-Indian children.
- 92.5 % of these Indian children were adopted by non-Indian families.
Indian Children Placed in Foster Care:
- 1 out of every 12 Indian children was in foster care.
- The foster care rate for non-Indians was 1 out of every 366.6.
- Thus, there were 2.7 times (270 %) as many Indian children in foster care as there were non-Indian children.
- No data was available on how many Indian children are placed in non-Indian homes or institutions.
The same disproportionality was seen in other states that were part of the report. Nationally, approximately 25 – 35% of all Indian children were placed in foster homes, adoptive homes or institutions. The federal Committee on Interior and Insular Affairs, stated in their report that called for the enactment of the ICWA:
“It is clear then that the Indian child welfare crisis is of massive proportions and that Indian families face vastly greater risks of involuntary separation than are typical of our society as a whole.”
ICWA & CASA
For an informative article click here, to read Indian Child Welfare Act and CASA/GAl Volunteers: Advocating for the Best Interest of Native Children by Abby Abinanti, Yurok Unified Family Court, San Francisco. Courtesy of the National CASA Association.
How Can You Make a Difference?
As a CASA you can make your own inquiry regarding the child’s Indian ancestry in every case. You can ask the child, the family members or others that you interview if this could be an Indian child. If you discover information that indicates the child may be an Indian child, you should alert the court right away.
As a CASA, if you see any inconsistencies in the Judicial Council ICWA notice form 030, for example, the social worker has stated on the notice form that the child’s birth certificate is unavailable but you also saw a copy of the birth certificate in the file, or the notice says that there is no known address for the maternal grandparent in the case but that address is on a document in the file, you should notify the court as soon as possible so this error can be corrected. It may not seem like much, but cases are overturned for mistakes like this very often and that can lead to delays in permanency for the child.
OUT OF HOME PLACEMENT OF INDIAN CHILDREN
T there are specific placement preference for the out of home placement of Indian children. These preferences DO NOT include non-relative, non-Indian placements. This is intentional to ensure that we reverse the practice of removing Indian children from their families and placing in non-Indian homes. Yet many Indian children are still placed in non-relative, non-Indian homes. Get informed about the how your county system is doing, check your county statistics online at: http://cssr.berkeley.edu/ucb_childwelfare/CdssFiles.aspx
CULTURAL CASE PLANNING
As a CASA for a Native youth you can make recommendation to the court about culturally specific services that may be available to the Indian child you are an advocate for. You should do your own research to see what resources may be available to Indian children and families in the local community. You can recommend utilizing Native American specific services for the family. You can recommend services available to the Indian child like tribal after school programs, Indian health services, and cultural events.
SECURING THE CHILD’S TRIBAL MEMBERSHIP
Many Indian children in out of home placements are eligible for membership in their tribe but are not officially members. For most Indian children, securing their tribal membership would be handled by their parents, for obvious reasons, that is unlikely to happen for the children you are working with. Thus, the duty falls to the social worker. The importance of securing the child’s tribal membership cannot be stressed enough. It is a permanent political connection for this child which opens the door to personal and social connections as well.
Social workers are so overburdened this aspect of the case may slip through the cracks. As a CASA you can offer to assist in securing the child’s membership by gathering information on the process, gathering information on the child’s family background, and even completing any necessary paperwork.
Since membership requirements and procedures are different for every tribe, you will need to check with the tribe on a case-by-case basis to find out what you need to do.
Tribal Customary Adoption
As of July 2010, California law allows for a new option when adoption may be in the best interests of Native American children covered by ICWA. This more culturally appropriate form of adoption, called Tribal Customary Adoption, does not require the termination of parental rights.
If you have a child who is covered by the Indian Child Welfare Act, this is certainly something that you should be discussing as an alternative to Termination of Parental Rights.
For More information:
National Indian Child Welfare Association
California All County Letter 10-47
http://www.cdss.ca.gov/lettersnotices/entres/getinfo/acl/2010/10-47.pdf gives a good deal of technical information on Tribal Customary Adoption.
California All County Letter 10-17
http://www.dss.cahwnet.gov/lettersnotices/entres/getinfo/acl/2010/10-17.pdf is the ACL that gives an introduction to the new law allowing for Tribal Customary Adoption.
There are many resources available to Indian children and families in California. These resources include health services, mental health services, substance abuse programs, parenting classes and more. These services are provided by Indian health service centers, non-profit organizations and tribes and tribally organized entities. Here are some links and information to help you do your own research to see what resources may be available to the child and family in the local community.
If you have resources you would like to share, please send them to: email@example.com.
National Indian Child Welfare Association (NICWA)
The National Indian Child Welfare Association provides publications, training and information concerning the Indian Child Welfare Act of 1978.
California Indian Legal Services (CILS)
California Indian Legal Services is the first Indian controlled law firm organized to provide specialized legal representation to Indians and Indian tribes.
American Indian Education Foundation (AIEF)
American Indian Education Foundation supports American Indian students in achieving their dreams through completion of post secondary education.
Indianz.com Your Internet Resource
Presents news, advice, education links, tribal law information, and more from Native American perspective.
Indian Health Services (IHS)
Indian Health Services is an agency within the Department of Health and Human Services and is responsible for providing health services to Native American and Alaska Natives.
The site is designated to provide technical assistance to tribes, tribal programs, county social workers, and all other who work with tribal foster youth.
Articles & Reports:
- California Needs More Native American CASAs for Native American Children By: Christine Williams
- ICWA and CASA/Gal Volunteers: Advocating for the Best Interest of Native Children By: Abby Abinanti, Yurok Unified Family Court, San Francisco
- Improving CASA Advocacy for Native American Children In California A Tribal CASA Collaboration Policy Paper (2010) By: California CASA Association, Author Christine Williams
500 Nations with Alma Martinez, Kevin Costner