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Protecting Tribal Rights Under the Indian Child Welfare Act

Judge Christopher WIlsonBy Judge Abby Abinanti (R)Abinanti and Judge Christopher G. Wilson (L)

The Indian Child Welfare Act (ICWA) was passed in 1978 in response to decades of abusive behavior toward Indian families by state welfare and court systems. The abuses were documented and Congress’ response was the ICWA. The “heart” of the ICWA is that the best interest of a tribal child is to maintain a connection with their culture, heritage, and citizenship. The primary protector of this interest is/are the Tribes, who by this Act were made parties to all child welfare actions involving their children. The “weakness” of the Act is that the only party not guaranteed an attorney in these proceedings is the Tribe. So in fact, the weight of protecting this right/interest falls to the court—both the tribal court and the local state court. Tribes in northern California have been fortunate to have secured allies within the State Court systems in both Humboldt and Del Norte counties, and together we have worked hard to implement the Act. That has included agreements to “share” jurisdictional responsibilities, transfer cases and take full advantage of concurrent jurisdiction potentials with tribal courts.

The Yurok Tribe and the Del Norte County Department of Health and Human Services have an MOU that allows the Tribe to participate in multi-disciplinary teams. These statutorily mandated teams meet biweekly for open communication, collaboration, cross referrals, and service provision for families. Similarly, the Yurok Tribe is an active participant in the Humboldt County Multi-Tribal Round Table. Local native providers meet monthly to coordinate service provision not only on child welfare matters, but also juvenile delinquency, adult criminal and domestic violence/sexual assault related issues. In Humboldt County, county agency and tribal agency service providers also meet monthly to address gaps in child welfare and juvenile justice through the Weaving Good Relations Committee.

The Humboldt Superior Court issued a standing order giving the Yurok Tribe access to juvenile court records, including agency files, in order to improve compliance with ICWA and facilitate the transfer of cases from state court to tribal court. In the absence of this standing order, the county child welfare agency could not legally give these records to the Tribe, because they are confidential. The standing order has resulted in many positive outcomes. The Yurok Tribal Government is assisting their people, who are eligible for membership, to become enrolled members, thus creating a stronger, more sustainable tribal nation. Tribal and county social workers are working together to provide “active efforts” that prevent removal and court intervention. And when court intervention is unavoidable, the Yurok Tribal Court and the Humboldt Superior Court are able to direct that the case be transferred to the most appropriate forum. The standing order has led to legislation, recommended by the Tribal Court-State Court Forum and sponsored by the California Judicial Council, giving Tribes access to juvenile court records statewide.

Concurrent Jurisdictional Potentials
The Yurok Tribal Court and the Humboldt Superior Court have worked out procedures for the efficient transfer of ICWA cases to ensure that the necessary information and documentation moves from the local state court to the Yurok Tribal Court. Specifically, these ensure that the tribal court has all the information and documentation necessary to ensure continued Title IV-E eligibility. (The Tribe is now working on establishing Title IV-E programs.) The Yurok Tribal Court is addressing the devastating histories experienced by the Yurok children and families who come before the court—they become reconnected to their Tribe’s customs, traditions, spirituality, and lifeways, which paves the way for healing. The Yurok Tribal Court has credibility with state court judges, the local county child welfare agencies, county prosecutors and probation officers. What has organically developed between the two justice systems is a willingness to bridge across the two different worldviews and legal systems and to creatively use concurrent jurisdiction to bring Yurok families back home. Examples include deferred prosecution or judgment in juvenile delinquency and adult criminal cases, and the transfer of child welfare and juvenile delinquency cases from state court to tribal court.

In conclusion, as judges we know our justice systems cannot do alone what we can do together. We understand and see how connection to family and Tribe works to heal people and keep them out of trouble and harm’s way. By nurturing existing collaboration and fostering new collaboration among county, state, and tribal partners, we are able to model successful government-to-government relationships that result in positive outcomes for all our citizens.

About the Authors

The Honorable Judge Abby Abinanti is an enrolled Yurok tribal member and the first California tribal woman to be admitted to the California Bar. She was a Superior Court Commissioner in San Francisco for over 17 years where she was assigned to the Unified Family Court. She has been a Yurok Tribal Court Judge since 1997, and was appointed Chief Judge in 2007 where she currently serves. Judge Abinanti was in private practice from 1976–1992 and was the legal director and director of Lesbians of Color Project, National Center for Lesbian Rights from 1992–1994. She also served as directing attorney for California Indian Legal Services in Eureka. Chief Judge

Abinanti received her Doctorate of Jurisprudence from the University of New Mexico School of Law in 1973 and has worked extensively with vulnerable populations particularly in the area of juvenile dependency and delinquency. She has a vast speaking and training experience on topics such as the Indian Child Welfare Act, child maltreatment, and addressing the needs of at- risk adolescents.

In conjunction with the Tribal Council, Chief Judge Abinanti was instrumental in developing the Yurok Children’s Code, Yurok Family Code, and Judicial Ordinance, significantly expanding the Yurok tribal jurisprudence. She is currently leading the effort to expand the Tribe’s concurrent jurisdictional capacity and enhance services for Yurok tribal members, families, and children.

The Honorable Christopher G. Wilson was elected to the Humboldt County Superior Court in November of 1998. His tenure on the bench he has been divided between Criminal and Family Law assignments. He is a graduate of the University of Oregon School of Law and California State Polytechnic University – San Luis Obispo. Judge Wilson also studied at Uppsala University in Uppsala Sweden. He is a member of the Oregon State Bar, and a former member of California State and Federal Bars prior to taking the bench. Judge Wilson has received numerous awards and recognition for youth mentoring and the teen court in which he participates. He was appointed to the California State and Tribal Court Forum at its inception by Chief Justice Ronald George and reappointed in 2012 by Chief Justice Tani Cantil-Sakauye. Four Tribal Courts exercise their jurisdiction within his county’s geographical boundaries and Judge Wilson is a member of the Technical Advisory Committee for a fifth Tribal Court. He was named to the faculty of the National Judicial College in 2012.

The US Department of Justice has supported CASA advocacy since 1985 through its Office of Juvenile Justice and Delinquency Prevention.
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