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Indian Child Welfare Act in an Urban Setting

Referee Sherri Sobel, Los Angeles Superior Court                                                                

Summary: Working with Native American children and families in an urban setting presents a unique set of considerations and challenges to following the mandates of ICWA.

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To comply with provisions of the Indian Child Welfare Act in an urban setting, it is important to remember that heritage is internal and that ICWA is a philosophical belief as well as a legal mandate.

In Los Angeles we have over 100 tribes represented, but no Indian lands. Tribe members live among the population, and many are disengaged from their tribes and heritage. Here, and in many urban areas across the country, our courts struggle to deal with the provisions of ICWA. Homes may not be available in a child’s tribe and families often have not been involved in a meaningful way with any Indian lifestyle.

In Los Angeles, the juvenile court is unique in that it has designated one court as the ICWA court, and that court hears all ICWA cases. The ICWA court also hears cases that are not ICWA, but are “heritage cases” i.e., those in which the family identifies as Native American, but the children are not eligible, or in which the tribe is not federally recognized. In addition, we have a specific unit of social workers dedicated to Indian issues and services.

Working with native children and families in an urban setting has a unique set of considerations, a few of which I will attempt to summarize below.

  • Expert Witnessess: Obtaining expert witnesses for cases involving native children can be difficult. We do have tribes who will provide an expert for their families; however, more often than not, the tribe indicates that it will not write an expert report. ICWA requires that an expert opinion be reviewed by the court whenever there is a legal removal from a parent. While a tribal expert is preferred, there is a continuum of experts who can be used to provide acceptable information, so long as is it not the social worker on the case. For urban populations, the court should develop a list of acceptable experts by asking the community for Indian experts, from either universities or local Indian service providers, if available.
  • Placement of Children in Other States: In urban areas, there are no reservations to look  for placement and, frequently, few Indian foster homes. This means that we sometimes look outside of the area for tribal relatives. Placement in other states with tribal relatives has two issues that must be resolved. If the relative is on a reservation, and the tribe has a contract with the department of social services, a home study can be accepted without utilizing the ICPC (Interstate Compact for the Placement of Children). However, if the relative does not reside on the reservation, ICPC must be used. This is problematic, as these can take a significant period of time. For younger children, the attachment to current caretakers becomes an issue. It is important to plan accordingly and request home study information as soon as possible.
  • Home Studies: Home studies are important if you are sending a child to a tribal home. Tribes can send a letter simply indicating the name of the relative, and the relationship, plus some basic information about the household structure. This is not acceptable. You are free to ask for as complete a home study as you wish, and it is encouraged that the court require background checks, criminal history, dependency history, delinquency history, etc. The more specific the requests, the easier it will be to make a correct determination, especially if you are sending a child out of state based on ICWA considerations of Indian placement.

In cities without reservations or coordinated Indian living situations, people are scattered, disaffiliated, or simply separated from their culture. This is compounded by the loss of a child and it is important to understand and comply with both the letter and spirit of the law. Reaching out to Indian service providers and to the tribal community not only helps with reunification, but may help a parent reconnect with her history and culture.

 


 

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