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PROTECTING OUR CHILDREN THROUGH TRIBAL LAW
A Review of 100+ Tribal Child Welfare Codes (Part II)
Native Nations Institute and the National Indian Child Welfare Association
Adrian Tobin Smith, Mary Beth Jäger, Rachel Starks
HOW ARE TRIBES ASSERTING THEIR SOVEREIGNTY TO PROTECT THEIR CHILDREN?
This study analyzes how tribes are asserting their authority over child welfare and what lessons can be learned from enacted child welfare codes.
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Researchers reviewed 107 tribal child welfare codes.
Codes came from tribes in every BIA service region (including Alaska).
Indigenous nation populations in our sample ranged from fewer than 50 to approximately 18,000 citizens.
Almost half the codes reviewed were amended after 2000.
Codes were retrieved from the National Indian Law Library collection and other on-line sources.
RESPONSE TO CHILD
ABUSE AND NEGLECT
JURISDICTION
General Jurisdictional Framework
Mandatory Reporting
The study analyzed over 100 variables on eight child welfare topics: culture, jurisdiction, tribal-state relationships,
child abuse reporting, paternity, foster care, termination of parental rights (TPR) and adoption.
This graphic presentation highlights key findings from 4 of these topics: jurisdiction, tribal-state relationships, child abuse
reporting, and paternity. For highlights of the other topics please see Protecting Our Children Through Tribal Law (Part I).
TRIBAL-STATE
RELATIONS
PATERNITY
Provisions for Presuming or Establishing Paternity
80
70
Tribal Child Welfare Code
restates ICWA jurisdictional
framework
60
50
40
61%
30
39%
20
30%
Tribal Child Welfare Codeʼs
jurisdictional framework
differs from ICWA
70%
Code has mandatory
reporting provision
60%
Code does NOT have
mandatory reporting statute
40%
Tribal Child Welfare Code
Includes processes for
formally establishing or
presuming legal paternity
0
Tribal Policy Considerations:
Tribal Policy Considerations:
Asserting jurisdiction allows for child welfare
cases to be heard in tribal court—where
decisions will be made based on tribal code.
Who should be required to report possible child
abuse and neglect to authorities? What should
the penalty be for not reporting?
Over what area and which children should
your court assert jurisdiction?
• Individuals who come into frequent contact with children often
become aware of potential child abuse and negelct in a child’s
home. Requiring individuals who know or suspect abuse or
neglect to report it to authorities can give children a voice and
ensure important protections.
• ICWA formally recognized tribes’ inherent jurisdiction over
child custody proceedings involving member children both
on reservation (i.e., either exclusive tribal jurisdiction, or
concurrent jurisdiction with the state in accordance with
P.L. 280) and off reservation (transfer from state to tribal
jurisdiction).
Jurisdiction Over Indian Children
Explicit statement of jurisdiction over
tribal member children (only)
12%
25%
19%
44%
Explicit statement of jurisdiction over
tribal member children and statement of
jurisdiction over nonmember Indian Children
Explicit statement of jurisdiction over
nonmember Indian children (only)
No explicit statement of jurisdiction
in tribal welfare code
NO
Shaded area indicates codes that include BOTH jurisdictional statements.
Adrian (Addie) Tobin Smith, JD, MSW
Government Affairs Staff Attorney
National Indian Child Welfare Association
addie@nicwa.org
YES
60
70
22%
40
30
20
10
All community School official Child care
members
or employee personnel
Social
worker
Medical
Mental health
professional professional
Tribal
prosecutor
Mary Beth Jäger, MSW (Citizen Potawatomi)
Research Analyst
Native Nations Institute, University of Arizona
jager@email.arizona.edu
Tribal
judge
Attorney
Tribal law
enforcement
officer
No designated agent and
No transfer process
30
Tribal Policy Considerations:
20
How can tribal law promote ICWA protections for
members living off tribal land?
Not
Included
Born to
parties who
attempted to
marry (but
marriage was
not legal)
Born to parties Father has
who married held the child
(or attempted out as his own
to marry)
after the child's
birth and father
acknowledged child
Father has lived
with the child
and held the
child out ot
be his own
Father has
acknolwedged
his paternity
in writing
with the court
Tribal leaders have many local experts (e.g.,
tribal judges, lawyers, social workers) who
understand the current tribal child welfare
policies and practices. They know what works,
the challenges, and the financial considerations. Their expertise will assist in creating
strong and meaningful child welfare codes.
Process for transferring state child
welfare cases to tribal court (only)
80
Father has
acknowledged
his paterntiy
with the vital
statistics bureau
Other
Tribal Policy Considerations:
Should paternity be easy or difficult to establish?
Should presumptions be expansive or narrow?
• Being a biological father does not necessarily make an individual
a legal father. The tribal code is a place where tribes can
determine which fathers are legal fathers--which fathers have
paternity. Tribal child welfare codes can establish “presumptions”
of paternity and/or provide a process for fathers to formally
establish paternity.
Should cultural and traditional considerations be
a part of paternity laws?
40
0
50
Designated agent for responding
to ICWA notice+process to transfer
from state to tribal court
Shaded area indicates codes that include both a designated agent to respond to notice of ICWA cases, and
a process to transfer the case from state to tribal court.
Born during
marriage or
within 300 days
after marriage
80
50
40
Common Methods for Presuming Paternity
0
Who is a Mandatory Reporter?
60
30
29%
44%
Included
Should reporting penalties or expectations be
different for professionals versus other community members? What standards will the tribe
use to verify reports?
70
20
10
How will reporter anonimity be protected?
• In addition, tribes can generally assert civil jurisdiction
over all citizens of any federally recognized tribe when the
case arises on that tribe’s land.
Does your tribe have the resources and staff
for all the cases under its jurisdiction? Certain
cases? Complicated or high needs cases?
50
10
Designated agent for responding
to ICWA notices (only)
5%
No provisions for
formally establishing
or presuming paternity
10
0
Process to Respond to Notice of ICWA Cases and
Process to Transfer from State to Tribal Court
CONCLUSION
• Paternity affects which rights (e.g., rights to custody) and
responsibilities (e.g., child support) a father has. Paternity
provisions in tribal codes also inform which fathers are protected
by ICWA in state cases.
• States are required to notify tribes when they remove a member
child (or a child who could be a member) from their parents’ or
guardians’ home. A formal process to respond to state ICWA
notices can ensure a state knows when a case involves an “Indian
child” and when ICWA must be applied. It also protect's a tribe's
right to intervene in or transfer state court proceedings involving
member children.
How can tribal law facilitate transfers of state
ICWA cases to tribal court?
• ICWA gives tribes the right to transfer child custody proceedings
involving member children out of state court and into tribal court.
A formal transfer process promotes fair and feasible decisions
when determining which state child welfare cases should be
brought into tribal court.
When a state notifies a tribal court about an
ICWA-eligible case, does the tribe have a designated agent to respond to the notice?
If a child welfare case is eligible for transfer
from state to tribal court, does the tribe have a
process for the transfer?
Rachel Rose Starks, MA (Zuni/Navajo)
Senior Researcher
Native Nations Institute, University of Arizona
rstarks@email.arizona.edu
Copyright © 2015 Arizona Board of Regents. All Rights Reserved.
The citizens of Native Nations are also invaluable experts on child welfare. Through a
community engagement process, expertise on
community values, traditional culture, and
current needs can be gathered. Citizen
engagement with the child welfare code
process is essential to its success.
This analysis of tribal child welfare codes
captured important information about how
tribes define their jurisdictional boundaries,
protect children, provide legal rights to
fathers, and respond to families in state child
welfare systems. The study seeks to further
conversations about how tribes can assert
their sovereignty to protect their children.
How has your tribe
asserted its sovereignty
in its child welfare code?