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Timely Notice to the Child’s Tribe: In the Best Interests of the Indian Child

Donna J. Goldsmith Esq., General Counsel, Alaska Federation of Natives

Summary: Timely written notice to the child’s tribe—which means the earliest possible notice upon discovery that the child might be an Indian child—can affect every major decision made after the child enters the state child protection system.

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It has been more than thirty years since Congress enacted the Indian Child Welfare Act (ICWA) to protect the best interests of Indian children.[1] Much has been written about ICWA as tribal and state judges, and their respective governments, have struggled to understand—and ultimately respect—the authority and power of each sovereign. Although progress continues to be made in inter-governmental communication, cooperation and collaborative problem-solving, much work remains to be done to ensure that both state and tribal systems make the very best possible decisions to protect the health and welfare of Indian children whose parents cannot provide safe, healthy, and loving homes.

While both state and tribal judges and systems continue to work hard to improve decision making, one issue continues to plague the proper implementation of ICWA: timely notice to the child’s tribe. Section 1912(a) requires the party seeking to remove the child to provide the child’s tribe with proper, written notice of all upcoming proceedings relating to foster care placement and termination of parental rights. The provision is unquestionably the most important procedural provision contained within ICWA.

Timely written notice to the child’s tribe[2]—which means the earliest possible notice upon discovery that the child might be an Indian child—can affect every major decision made after the child enters the state child protection system. If a child’s tribe has not been made aware of the pending state proceedings regarding one of its children, it cannot assist either the court or the caseworker in critical actions including: confirming the child’s membership in the tribe; understanding any family dynamics and history that might affect provision of meaningful services to the parents, which in turn can prevent the provision of active efforts to reunify the family as required by ICWA[3]; identifying extended family or other tribal members who might serve as foster, pre-adoptive, or adoptive placements;[4] offering an expert witness to assist the court in understanding prevailing parenting standards in the child’s tribal community; and providing important cultural information to ensure that the child stays connected to his/her culture during the difficult time of separation. In addition, if the tribe does not know about the proceedings, the court will not know whether the child is already a ward of the tribal court and thus within the exclusive jurisdiction of the tribe.[5] Similarly, without notice, the tribe won’t have an opportunity to have the case transferred to tribal court if it so chooses, or to assert exclusive jurisdiction[6] where the state court lacks jurisdiction.

In our mobile world, where people move within and across cultures readily, it is not always easy to identify a child’s tribe. If the only parent who has knowledge about the child’s membership status is absent when the court first exerts jurisdiction, the court may not learn for some time that the child is an Indian child. Even if the parent with that knowledge is in court, it is not uncommon for Indian parents who reside in urban settings to have lost touch with their tribal communities, and to not know their child’s tribal membership status. The fact that the parent has lost touch with the community does not necessarily mean, however, that the child is not an Indian child under ICWA. Federal law unequivocally recognizes that it is the purview of the Indian tribe to determine its members[7] thus[pc1] , membership rules vary from tribe to tribe.

Providing notice in a timely manner to the child’s tribe is important to meet the statutory best interests of the Indian child.[8] It is also a professional responsibility. In a well-publicized case, the Alaska Supreme Court held that a private law firm committed malpractice when it failed to follow the provisions of ICWA.[9] NCJFCJ and National CASA standards urge timely notice to the child’s tribe to ensure the tribe has a meaningful opportunity to assist the court, or to exercise its rights under federal law.

In short, the failure to provide timely written notice to the child’s tribe can (and often does) make it difficult, if not impossible, for the state court to comply with the majority of the substantive requirements in ICWA. Failure to notify the child’s tribe will undermine the child’s best interests if the Indian child is placed in a non-Indian, non-ICWA compliant foster or permanent home. Because it is impossible to follow any ICWA requirements without first identifying and notifying the child’s tribe of all proceedings involving a tribal child, it is important for the court to ensure that the party initiating the child custody proceedings makes concerted efforts to properly identify the child’s tribe, and to provide that tribe with notice and an opportunity to participate in the case at each and every stage of the proceedings. It is only when notice is provided that the court will ensure that all decisions made on behalf of that Indian child will best protect his/her health, welfare and future.

 

Editor’s Note: Over the last 25 years, Donna Goldsmith has served in a number of capacities in both state and tribal child protection systems—as a tribal judge, a special assistant attorney general, and an attorney representing children, foster parents, extended families, Indian tribes, and nonprofit tribal organizations. She continues to consult and provide training on state-tribal relations and the ICWA for judges and attorneys nationwide.



[1] See 25 U.S.C. §§ 1901 and 1902. See generally Mississippi Choctaw Band of Indians vs. Holyfield, 490 U.S. 30, 36 (1989).

[2] Though the child’s tribe may be different from the tribe in which the parent belongs, states often provide notice to the parent’s tribe, and make no further inquiries.

[3] I will never forget one case where my client suffered from deep depression after the death of her mother, which resulted in the parent’s substance abuse. None of us would ever have understood that dynamic without information offered by the tribal caseworker. The state initially attempted to fast-track the case, before even identifying or offering proper services for my client. I succeeded, however, in getting her into a relevant dual-treatment program where her young children joined her. She successfully regained legal custody of her children, and they remain happy, and healthy and - together.

[4] 25 U.S.C. §§ 1915 (a) and (b).

[5] 25 U.S.C. § 1911(a).

[6] 25 U.S.C. § 1911(a).

[7] Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978)(“[A] tribe’s right to define its own membership…has long been recognized as central to its existence… [ t]he judiciary should not rush to create causes of action that would intrude on these delicate matters.” See also 25 U.S.C. § 1911(d) (tribal judicial and other governmental acts are entitled to full faith and credit).

[8] See generally “National Council of Juvenile and Family Court Judges Indian Child Welfare Act Checklists for Juvenile and Family Court Judges,” June 2003; Indian Child Welfare Act, Benchguide, California Center for Judicial Education and Research, Administrative Office of the Courts.

[9] Doe v. Hughes, 838 P.2d 804 (Alaska 1992).


 [pc1]Just need a space between the number the word ‘thus.’

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