Indian Child Welfare Act

ICWA aimed at correcting history of abuse of Indian families, culture By Frank Weir Legal News Michigan is at the forefront of an effort to right injustices against indigenous peoples that have existed for decades. The Indian Child Welfare Act (ICWA) was passed by Congress in 1978 to protect the best interests of Indian children and to promote the cohesiveness of families and tribes. Circuit Court Judge Timothy Connors, interested in ICWA recently keynoted the first of five regional trainings about the act in Ann Arbor. The trainings are co-sponsored by the Child Welfare Services Division of the State Court Administrative Office and the Governor's Task Force on Children's Justice. In addition to Connors, the training in Ann Arbor featured Tribal Judge Angela Sherigan; Stacey Tadgerson, director of Native American Affairs for the Michigan Department of Human Services; Allie Greenleaf Maldonado, an attorney affiliated with the Little Traverse Bay Bands of Odawa Indians; Cheboygan County Probate Court Chief Judge Robert Butts; and Frank Vandervort, clinical assistant professor of law at the University of Michigan Law School, Child Advocacy Law Clinic. Tadgerson spoke at length providing a history of the American Indian experience and the changing attitude of the U.S. Government toward tribal life. At one time, boarding schools were established for Indian children. The government viewed adult Indians as savages that could never assimilate into white European life. But it was believed that children could be removed from their families, put in boarding schools where traditional dress, language and customs would be strictly forbidden. The aim of the schools was to solve the "Indian problem" once and for all by destroying native culture. It was hoped tribes would eventually cease to exist. Both Tadgerson and Sherigan emphasized that treatment in the schools was horrendous and "many children" perished in them of "broken hearts or broken bodies." "You will always find a cemetery near the sites of these boarding schools," Tadgerson said with Sherigan later adding, "Twenty-five to 30 percent of children removed and sent to boarding schools did not come back to their families or tribes; not because they assimilated into another life or were adopted. They died." "Removing Indian children was a formal governmental policy," Maldonado explained. "The absolutely alarming rate of removal of Indian children chiefly led to ICWA" "The policy of separation was a major aim of Indian services for generations. In fact, this happened to my own mother after my grandmother died. My family had hundreds of relatives in the Beaver Island area but my mother and her brother were separated and sent away to work as domestic servants for a Mennonite minister. "My mother never saw her family again. I'm the first to return to our familial home." Maldonado said that Congress finally realized that official policy "broke the fabric of Indian families and when families were broken apart en masse, it threatened the existence of all the Indian tribes. And that was the impetus for ICWA. The two main purposes of ICWA being: --ICWA protects the best interests of Indian children as determined by their tribe; --ICWA promotes the stability and security of Indian tribe families." Under the implementation of ICWA, tribes have exclusive jurisdiction in any child custody proceeding involving an Indian child who resides within the reservation of the tribe; ICWA Child Protective Services actions must utilize "active efforts" to prevent removal of the child from the family; must utilize "active efforts" to attempt reunification of the family; must implement ICWA's placement preference of an Indian or relative foster home or adoptive placement; use a "beyond a reasonable doubt" evidentiary standard for termination of parental rights versus the clear and convincing standard utilized in state courts. Guest panelist at the training, Chief Judge Robert Butts of Cheboygan, noted that "as soon as I took the bench, I started hearing these cases and learning as I went along. "When ICWA is involved, your responsibility is to inquire about tribal membership. The best practice in my opinion is to give the tribe notice whether ICWA applies or not." "I am more comfortable as a judge when everyone is communicating, especially in open adoptions which are allowed under ICWA. "We had one case where it was determined that a child would be placed in a non-Indian family. The family agreed to have the tribe actively involved. I terminated parental rights in my county and the adoption was finalized in Leelanau County. We had a ceremony in which the tribe gave its approval to the adoption on the courthouse steps. I think the tribe was thinking along the same lines as what we ended up doing." "This is the way to fix what happened in the past. Money can't fix these families but by using ICWA, we can have the tribes involved and preserve Indian families and, thereby, Indian culture," he said. Up coming trainings will be held in Marquette on August 24, Mt. Pleasant on August 25, and Petoskey on August 26. For more information, contact the Child Welfare Services of the State Court Administrative Office. Published: Thu, Jun 24, 2010

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