This Georgia Child Welfare Legal Academy program explores the unique needs of American Indian children in foster care.

1. Indian Child Welfare Act
GA Child Welfare Legal Academy,
September 27, 2011
Nealie McCormick, Chairman Georgia
Council on American Indian Concerns
Judge Lisa M. Mantz, Associate Judge,
Newton County Juvenile Court

2. • "ICWA" stands for the Indian Child Welfare Act, which
is a federal law passed in 1978. ICWA was passed in
response to the alarmingly high number of Indian
children being removed from their homes by both
public and private agencies. The intent of Congress
under ICWA was to "protect the best interests of
Indian children and to promote the stability and
security of Indian tribes and families" (25 U.S.C. §
1902). ICWA sets federal requirements that apply to
state child custody proceedings involving an Indian
child who is a member of or eligible for membership in
a federally recognized tribe.
Why ICWA

3. Why
• A 1976 study by the Association on American
Indian Affairs found that 25 to 35% of all Indian
children were being placed in out-of-home care.
Eighty-five percent of those children were being
placed in non-Indian homes or institutions. *
• *Unger, Steven, ed., The Destruction of
American Indian Families, New York: Association
on American Indian Affairs, 1977, p.1.

4. What Is ICWA’s Purpose?
• The purpose of ICWA is to do the following:
• • Protect Indian children
• • Preserve and strengthen Indian families
• • Ensure permanency for Indian children
• • Protect the continuing existence of Indian
cultures
• • Ensure that tribes can exercise their
sovereign authority over child custody
proceedings

5. 25 U.S.C. § 1901 et seq.
• It is through relationship with family, elders,
tribal community, and culture that the Indian
child’s sense of permanence and identity is
protected (25 U.S.C. § 1901 et seq.).

6. Permanency Issues
• ICWA ensures that permanency issues are
addressed early and in a way that is consistent
with good social work practice and with ICWA
and the Adoption and Safe Families Act of
1997 (ASFA).

7. The presence of tribal welfare
workers/tribal attorney
• • Assistance
• • Advice
• • Positive joint efforts
• • Tribal intervention
• • Possible transfer of the case
• • The sharing of critical, culturally relevant
resources and information
• • Maximum input on placement decisions

8. The Other Side of ICWA 8
Adoption & Safe Families Act (ASFA)
1997
• It applies to Indian children because
• ASFA has no express exemption for Indian
children.

9. To know how to help families now you
have to understand their history
• Historical Trauma
–Boarding Schools
–Loss of language
–Distrust
–ICWA
–Forced Assimilation
• Differences between Native American children
and non-Native American children

10. The Other Side of ICWA 10
SPIRITUALITY
CHILD REARING / EXTENDED FAMILY
VENERATION OF AGE / WISDOM/ TRADITION
RESPECT FOR NATURE
GENEROSITY AND SHARING
COOPERATION/ GROUP HARMONY
AUTONOMY / RESPECT FOR OTHERS
COMPOSURE / PATIENCE
RELATIVITY OF TIME
NON-VERBAL COMMUNICATION
NATIVE AMERICAN CORE VALUES & BELIEFS

11. Who is an “Indian Child” under
ICWA
• Unmarried and
• Under Eighteen and
• A member of a federally recognized Indian
Tribe OR the child is a biological child of a
member of a federally recognized Indian Tribe
and the child is eligible for membership in any
federally recongized Indian Tribe 25 U.S.C.
Section 1903(4)

12. Practice Tips
The child may be eligible for membership in a
different tribe from that of the parent and
ICWA still applies.
• • A child who does not meet the definition for
“Indian child” under ICWA when the case starts
• may later acquire Indian status. For example, if
a parent enrolled in a tribe a child may gain
• Indian child status. In that case, ICWA would
apply from that point forward.

13. Who determines eligibility
• All tribes have the right to determine who is a
member of their tribe, and different tribes
have different requirements for eligibility. In
order to understand these requirements for
the particular tribe in question, contact the
child’s tribe.

14. National Indian Child Welfare
Association (NICWA)
• NICWA website at www.nicwa.org. Click on
the Resources
• tab and then click on Tribal Directory.

15. Bureau of Indian Affairs Office
(BIA)
– Review the Federal Register to determine if the
tribe is federally recognized
– If so, determine the geographic location and the
BIA regional office of the tribe and the name and
contact information for the Indian Child Welfare
Designated Agent for the tribe that will be listed in
the federal registry
That agent will be able to provide the name and
contact information for the local tribal social
service program and or the ICWA representative

16. Documentation
• − Family history chart
• − Tribal enrollment number
• − Tribal ID card
• − Certificate of Degree of Indian Blood
• − Other evidence such as a letter from the
tribe or Bureau of Indian Affairs (BIA)
• − Documentation from the Indian Health
Service, medical clinic, or school

17. If unable to determine Indian
status
• Contact the tribe(s) and ask if the child is a
member.
• Determine if the child is living in an Indian community.
• •Diligently inquire about the Indian heritage of any absent parent
and the history of her or his
• extended family. Consult with other relatives or extended family
members.
• • Contact, as appropriate, Indian social services, health, or
educational organizations.
• • Contact the BIA in Washington, D.C., and the appropriate local
BIA office for information about the parents and tribal contact
information

18. What proceedings apply to ICWA?
• Foster care placements (25 U.S.C. § 1913[a] [voluntary] and §
1912[e] [involuntary])
• Termination of parental rights (25 U.S.C. § 1903[1][ii])
• Pre-adoptive placements (25 U.S.C. § 1903[1][iii])
• Adoptive placements (includes conversion from foster care to
adoptive placement) (25 U.S.C. § 903[1][iv])
• Both voluntary and involuntary placements
• Divorce proceedings where neither parent will get custody
• Any transfers of placement
• Juvenile delinquency proceedings where parental rights may be
terminated
• Status offenses (juvenile delinquency proceedings that involve
an offense that would not be a
crime if committed by an adult, e.g., drinking, runaway, truancy)

19. When does ICWA not apply?
• Juvenile delinquency proceedings involving
violations of criminal law
• Divorce proceedings where one or both
parents are granted custody (25 U.S.C. § 1903)

20. Emergency Removal
• This information must be determined immediately
unless emergency placement or immediate safety
issues prevent inquiry:
• Whether the child is in imminent physical danger
• The Indian status of the child
• The name of the child’s tribe
• The jurisdiction over child custody proceedings

21. Placement Preferences
• The placement preferences outlined in Section
1915(b) of ICWA, which are to be applied in foster
care placements (including cases involving
emergency placements), are:
• 1. A member of the Indian child’s extended family
• 2. A foster home licensed, approved, or specified by
the Indian child’s tribe
• 3. An Indian foster home licensed or approved by an
authorized non-Indian licensing authority
• 4. An institution for children approved by an Indian
tribe or operated by an Indian organization that
• has a program suitable to meet the child’s needs

22. Termination of Emergency
Placement
• Emergency placement must end as soon as
the danger of imminent physical damage or
harm to the child has passed or the
appropriate tribe exercises jurisdiction over
the case.
This is a much more restrictive standard for
removal than the regular standard for
establishing jurisdiction over a child.

23. Emergency Placement of an Indian
Child
• the child welfare worker must undertake diligent
efforts to place the child during emergency care in a
setting that complies with the placement
preferences in Sections1915(b) or (c) of ICWA. It
should be noted that the Indian child’s tribe has the
right to establish placement preferences, and the
county or state court is required to follow the
order,
• as long as, it is the least restrictive setting
appropriate to the particular needs of the child.

24. Appropriate Foster Care
Placements
• When appropriate in foster care placements,
the preference of the Indian child or parent is
to be considered. When a consenting parent
requests anonymity, the court must give
weight to the parent’s request in applying the
placement preferences (25 U.S.C. § 1915[c]).

25. What are active efforts
• While active efforts is undefined in ICWA, it
refers to an effort more intense than the legal
term “reasonable efforts.” Active efforts
applies to providing remedial and
rehabilitative services to the family prior to the
removal of an Indian child from his or her
parent or Indian custodian, and/or an
• intensive effort to reunify an Indian child with
his or her parent or Indian custodian.

26. Active Efforts
• However, federal guidelines do exist (Federal
Register, Vol. 44, No. 228, Monday, November
26, 1979).

27. Revised Active Efforts Principles
and Expectations, Oregon
• Commitment to the requirements and the
spirit of the Indian Child Welfare Act;
• • Early contact with and active engagement of
the child’s tribe. Active efforts does not
require or imply agreement on case issues but
does create an expectation that the agency
and tribes will work closely together in an
atmosphere of mutual respect and honesty to
achieve understanding;

28. Goals
• a more vigorous and higher level of effort than
those that typically constitute reasonable efforts.
• Casework which goes beyond:
• referring for services to arranging services,
• and helping families engage in those
• services;
• managing a case to proactively engaging
• in diligent casework activity; and

29. • meeting the minimum requirements set by
• policy to creatively meeting the needs of
• children and families.
• • Using methods and providing services that
are culturally appropriate
Revised Active Efforts Principles and
Expectations Publication, Oregon Tribes,
Oregon Judicial Department Citizen Review
Boards, Oregon Department of Human
Services (2010)

30. Petition should include
• − The name, age, tribal affiliation, and last
known address of the Indian child.
• − The name and address of the child’s parents,
Indian custodian (if any), and tribe(s).
• − If the name and location of the child’s
parents, Indian custodian (if any), or tribe is
• unknown, the county child welfare worker
should document the diligent efforts
undertaken to ascertain this information.

31. Petition
A detailed account of the circumstances that
led to the conclusion that the child would
suffer imminent physical damage.
A written plan of action describing the “active”
reunification efforts that have been
undertaken and which are planned to restore
the child to his or her parents or Indian
custodian.

32. For Indian Children Domiciled on a
Reservation
• • For Indian children who are domiciled or
reside on the reservation and are temporarily
off the reservations, develop a specific plan of
action to physically transfer the child to the
exclusive jurisdiction of the appropriate Indian
tribe in cooperation with the tribal court and
child welfare worker

33. 33
QUESTION:
Does ICWA apply to Tribes?

34. 34
Answer:
No, ICWA does not apply to
Tribes.
ICWA does give Tribes rights and
opportunities.

35. 35
Are Tribes required to
intervene in ICWA cases?
QUESTION:

36. 36
Answer:
No, Tribes are not required to intervene.
Tribes can exercise their
rights to intervene but are
not required to do so.
Intervention does not equate
transfer.
It is best practice to…

37. 37
Does ICWA apply even if a parent
does not want it to apply?
QUESTION:

38. 38
Answer:
Yes!
There is sometimes confusion between
intervention and transfer. A parent can object
to the transfer of the case with good cause.
Courts can determine also deviate from
placement preferences with good cause.

39. 39
QUESTION:
When does ICWA apply to a child
and family?

40. 40
Answer:
ICWA begins before a child is removed. The
worker must make “active efforts” to prevent
the child from being removed.
The court will require the agency to demonstrate
that “active efforts” have been made and proven
unsuccessful.

41. 41
QUESTION:
Who is an expert witness in
relation to ICWA?

42. • “Qualified expert witness” is not defined in
ICWA
• House Report 95-1386, 95th
Cong., 2d Sess,
reprinted in 6 USCCSAN 7530, 7454 (1978)
states is “meant to apply to expertise beyond
normal social worker qualifications”
Answer

43. 43
Answer 44 Federal Register
67,593 (1979)
A member of the child’s tribe who is recognized by the tribal
community as knowledgeable in tribal customs as they
pertain to family organization and child rearing practices
or
A lay person having substantial delivery of child and family
services to Indians and extensive knowledge of prevailing
social and cultural standards and child rearing practices
within the child’s tribe or
A professional person having substantial education in his or
her area of specialty along with substantial knowledge of
prevailing social and cultural standards and child rearing
practices within the Indian community

44. Removing an Indian child in protective
custody proceedings:
Tribe is notified of the right to intervene.
…Proof by clear and convincing evidence by a qualified
expert that the child will
suffer emotional or physical harm if returned home.
Proof DFCS made active efforts to prevent the
placement.
Preference to placement with extended family
members, approved tribal home,
• Indian foster home or Indian-approved institution.

45. Approving the voluntary
placement of an Indian child
• … Parent signs written consent before judge.
• … Consent is signed more than 10 days after child’s
birth.
• … Certify you explained terms and consequences and
the parent understood.
• … Certify if the explanation was in English or
translated into another language the
• parent understood.
• … Preference to placement with extended family
members, approved tribal home,
• Indian foster home or Indian approved institution.

46. Terminating parental rights to an
Indian child
Tribe notified of right to intervene.
• … Proof beyond a reasonable doubt by a
qualified expert that the child will suffer
• emotional or physical harm if returned home.
• … Proof DFCS made active efforts to reunify the
family.
• … Preference to placement with extended
family members, tribal members or other
• Indian families.

47. Accepting relinquishment of an Indian child:
• … Parent signs the written consent before a judge.
• … Consent is signed more than 10 days after child’s birth.
• … Certify you explained terms and consequences and the
parent understood.
• … Certify if explanation was in English or translated into
another language the
• parent understood.
• … Preference to placement with extended family members,
tribal members or other
• Indian families.
• Consent can be withdrawn, for any reason and at any time,
before the entry of the final order of termination or decree of
adoption.

48. Time Frame for Hearings 1912(a)
• Notice to parent, Indian custodian, or the
Indian Child’s Tribe, by registered mail, return
receipt requested, of the proceeding and the
right to intervene
• If identity or location of parent cannot be
determined, notice shall be given to the
Secretary, who has 15 days to notify the tribe
• Hearing no sooner than 10 day and tribes
have the right to request a 20 day
continuance

49. What standard applies to these
cases?
• Section 1921— Any state or federal law that
provides a higher standard to protect the
rights of the parent or the Indian Custodian of
an Indian child than the provisions of ICWA,
shall be applied by the State or Federal Court.

50. • If a Native American Child does not meet the
definition of “Indian child” outlined in the act,
ICWA would not apply.
• All other federal and state laws, apply including
relative placement provisions and the
opportunity to be heard in a case review hearing.
What if the child is Indian but not
a member of a federally
recognized tribe?

51. What is a state recognized Indian
Tribe?
• A state recognized tribe is a “tribe that
maintains a special relationship with a State
government and whose lands and rights are
usually recognized by the State. They may or
may not be federally recognized.”

52. Georgia’s State RecognizedTribes
• The Georgia Tribe of Eastern Cherokee, The
Lower Muscogee Creek Tribe, and The
Cherokee of Georgia Tribal Council are state
recognized tribes. See O.C.G.A. Section 44-
12-300

53. Nealie McCormick, Chairman
Georgia Council on American Indian Concerns
c/o Historic Sites Region Office
2600 Highway 155 SW, Suite D, Stockbridge, GA 30281
Telephone: 770.389.7265 / 229.294.0011

54. Georgia Council on American Indian
Concerns
• In 2002,The Georgia Council on American Indian
Concerns was awarded the added responsibility
of advising the State and local governments on
issues related to Georgia’s American Indians.
The Council is located in Stockbridge Georgia.
There are nine members appointed by the
Governor. Five members are to be American
Indians, one member at large, one physical
anthropologist and one scientist. The Council
meets every second Wednesday of the month at
1:30 at the Sloppy Floyd Building in Atlanta.

55. Source of information:
http://www.ga.nrcs.usda.gov/about/civilrights/aipage.html

56. Other State-Recognized Tribes
Alabama
 United Cherokee Ani-Yuw-Wiya
Nation
 Cherokees of N.E. Alabama
 Echota Cherokees
 MaChis Lower Alabama Creek Tribe
 Mowa Band of Choctaws
 Star Clan-Muscogee Creek Tribe
 Cher-o-Creek Intra Tribal Indians
 Piqua Shawnee Tribe
Connecticut
 Golden Hill Paugussett Tribe
 Paucatuck Eastern Pequot Tribe
 Schaghticoke Bands
Delaware
 Nanticoke Indians
Louisiana
 Caddo Indian Tribe
 Choctaw-Apache of Ebarb
 Clifton Choctaw
 Louisiana Choctaw
 United Houma Nation

57. Other State-Recognized Tribes
Continued
Maine
 Passamaquoddy Tribe
 Penobscot Nation
Massachusetts
 Hassanamisco
Michigan
 Burt Lake Band of Ottawa and
Chippewa Indians
 Grand River Band of Ottawa Indians
 Gun Lake Band of Grand River Ottawa
Indians
 Swan Creek Black River Confederated
Ojibwa Tribes
Missouri
 Chickamauga Cherokee
 Northern Cherokee
New Jersey
 Rankokus
New York
 Poospatuck
 Shinnecock
North Carolina
 Coharie
 Haliwa-Saponi
 Lumbee
 Merherrin
 Waccamaw-Siouan

58. Other State-Recognized Tribes
Continued
Virginia
• Chickahominy
• Eastern Chickahominy
• Mattaponi
• Monacan
• Nansemond
• Pamunkey
• Rappahannock
• Upper Mattaponi

59. The Georgia Tribe of Eastern Cherokee
• The Georgia Tribe of Eastern Cherokee
• P.O. Box 607, Dahlonega Ga 30533
• Eligibility Unbroken lineage to Roll
• Members 500
• Tribal Leader Walker Dan Davis
• JB Jones
• Contact Information 706-865-3906

60. Tribal Government
• The Lower Muskogee Creek Tribe has three
branches of Government
• Executive Branch---Mekko (Chief)
• Legislative Branch Tribal Council
• Judicial Branch- Executive Council Head by
the Chief

61. The Lower Muscogee Creek Tribe
• The Lower Muscogee Creek Tribe
• Route 2, Box 370
• Whigham, GA 31797
• Eligibility: Unbroken lineage to Rolls
• Members 2700
• Tribal Leaders Chief Vonnie McCormick
• Telephone number 229-762-3165

62. Restoration of Rights
• 1946 Chief Calvin McGhee filed and won
lawsuits for the land claims for the Muskogee
people. This is known as Docket 21.
• As a result of this lawsuit, the Federal
Government recognized that 17.5% of the
Creek Nation still remained in the East and
they were given Federal roll numbers.

63. The Cherokee of Georgia Tribal Council

64. Efforts by the National Council of
Family and Juvenile Court Judges
• CONFERENCE OF CHIEF JUSTICES
• Resolution 5
• To Encourage Greater Collaboration Between
State Courts and Tribal Courts to Protect
Native American Children

65. NCFJCJ
• RESOLUTION IN SUPPORT OF TRIBAL COURTS
• AMENDED RESOLUTION IN SUPPORT OF
POLICY RECOMMENDATIONS FOR
• TRIBAL ACCESS TO FEDERAL COURT
IMPROVEMENT PROJECT (CIP) FUNDS

66. Courts Catalyzing Change (CCC)Courts Catalyzing Change (CCC)
Model CourtsModel Courts
National AgendaNational Agenda
ImplementationImplementation

67. CCC National Agenda
Key Components
I. Engage national, state, local and tribal
stakeholders, community partners, & children
and families
II. Transform judicial practice from the bench
III. Participate in policy and law advocacy
IV. Examine and employ research, data, &
promising practices
V. Impact service array and delivery

68. NCFJCJ Publications
• Right from the Start: The CCC Preliminary Protect
• Court Reform and American Indian and
Alaskan Native Children:
Increasing Protections and Improving
Outcomes (2009)

69. NCJFCJ Publications
• Revised Active Efforts Principles and
Expectations Publication, Oregon Tribes,
Oregon Judicial Department Citizen Review
Boards, Oregon Department of Human
Services (2010)
• Technical Assistance Brief Indian Child
Welfare Act Checklists for Juvenile and
Family Court Judges (2003)

70. State Court Improvement Project
• The CIP was established as part of legislation
passed in 1993 to enable state courts to
perform assessments of their foster care and
adoption laws and processes, and to draft and
employ state plans for system-wide
• reform. The goal was to enable courts to fulfill
the oversight role required of them by the
Adoption Assistance and Child Welfare Act
(P.L. 96-272).

71. Meaningful collaboration
• In following the Pew Commission’s
• emphasis on collaboration, the new CIP
Program Instructions require that recipient
state courts conduct ongoing and meaningful
collaboration with child welfare agencies and
tribes.
• This requirement applied to all tribes, not just
those recognized by the federal government.
• Emphasis on data collection and training for
stakeholders.

72. State Requirements to Show
Compliance with the Five Major
Components of ICWA• Identification of Indian children by the State Welfare
Service Agency
• Notification of Indian parents and Tribes of State
proceedings involving Indian children and their right to
intervene;
• Placement preferences of Indian children in foster
care, pre-adoptive, and adoptive homes;
• Active efforts to prevent the breakup of the Indian
family when parties seek to place a child in foster care
or for adoption; and
• Tribal right to intervene in State proceedings, or
transfer proceedings to the jurisdiction of the Tribe.

73. Georgia’s Compliance with the Five
Major Components of the Indian Child
Welfare Act
• In order to determine Georgia’s Compliance
with the Indian Child Welfare Act, one must
review Georgia’s compliance with the
requirements of the Annual Progress and
Service Report (APSR), Child and Family
Service Plan (CFSP) and the Chafee Foster
Care Independent Program (P.L. 106-169)

74. "Let us put our minds together
and see what life we can make
for our children."
--Sitting Bull

75. Resources
• Gina Jackson, MSW
• Model Court Liaison
• Permanency Planning for Children Department
• National Council of Juvenile and Family Court Judges
• 50 West Liberty, Suite 300
• University of Nevada, Reno
• Reno, NV 89501
• Tel: (775) 784-7040
• Fax:(775) 327-2393

76. RESOURCES
• B.J. Jones, The Indian Child Welfare Act
Handbook (American Bar Association 1995).
This book summarizes case law nationally,
includes the BIA guidelines, and lists the
addresses of all federally recognized tribes. To
order, call 1-800-285-2221.
• NEVADA ICWA CHECKLIST, ICWA Resource
Guide

77. Resources
Tribal Star, Academy for Professional Excellence, San Diego St
://
theacademy.sdsu.edu/TribalSTAR/resources/Resource_List.
National Indian Child Welfare Association
http://www.nicwa.org/Indian_Child_Welfare_Act/
•
•