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After San Diego social workers took twin boys into protective custody two years ago for fear that they were being physically battered, the parents — in an attempt to retain custody — claimed some degree of Cherokee Indian heritage. That might have been enough for the trial court judge to invoke the federal Indian Child Welfare Act, which requires the appropriate tribe to be notified in case its members want to intervene in dependency proceedings in an effort to keep children in a Native American setting instead of with a non-Indian family. But San Diego County Juvenile Court Judge Susan Huguenor ruled that the act didn’t apply and terminated reunification services a year after the boys were taken from their parents. A few weeks ago, San Diego’s 4th District Court of Appeal reversed, saying in Dwayne P. v. Superior Court of San Diego County, 02 C.D.O.S. 10787, that the act did apply and the Cherokee nation should have been notified — even though the parents never objected to the lower court’s order and never outright claimed membership in the Cherokee tribe. “The ICWA,” Justice Judith McConnell wrote, “confers on tribes the right to intervene at any point in state court dependency proceedings.” So it goes in California appeal courts all the time. Nearly 25 years after Congress adopted the Indian Child Welfare Act to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families,” social workers and trial court judges can’t seem to get it right. State appellate files are replete with rulings remanding cases back to the trial courts to make sure every effort has been made to determine whether a child has even minimal Indian heritage and to contact the appropriate tribe — of about 550 federally recognized tribes nationwide. “It’s kind of discouraging,” says Joanne Newton, staff attorney in the Escondido office of California Indian Legal Services. “After 20 years of repeated trainings on our part and other advocates’, they are still grappling with how to provide the minimal notification. It just seems to be ignorance on how to contact a tribe or how to ascertain a child’s heritage with a tribe.” Or it could be sincere disagreement over when the act’s notice provisions kick in and whether they apply at all. “The whole basic thing comes down to when does a state agency or a court have reason to know a child is Indian?” says San Diego Deputy County Counsel L. David Casey. “The [child services] agency takes a position that if you as a parent aren’t claiming membership [in a tribe] and that your child is not, then there’s no reason to know this is an Indian Child Welfare Act case, and no reason to provide notice.” Adding to the confusion over ICWA is a debate over the so-called “existing Indian family doctrine.” Created by the state’s courts to carve out an exception to the act to prevent tribal intervention when a child has never been part of an American Indian home or culture, the doctrine was nullified by legislation passed in Sacramento in 1999. Nonetheless, several state courts, including Los Angeles’ influential 2nd District Court of Appeal, have declared the new law unconstitutional and the existing Indian family doctrine valid. “Now we have the split again,” says Sherri Sobel, a dependency referee in Monterey Park, Calif., who handles most of Los Angeles County’s ICWA cases. “What has happened in the meantime is that the courts of appeal, for some reason, have made the determination that, for God’s sake, if you’re going to do nothing else, [provide] notice. But what constitutes good notice?” ‘INDIAN’ IDENTITY Congress passed the Indian Child Welfare Act — 25 U.S.C. � 1902 — in 1978 after determining it was in the best interest of an American Indian child to retain tribal ties and cultural heritage, and for the tribe to preserve its future generations. Congressional leaders decided state courts had not protected these interests. Under the ICWA, if there is reason to believe a child in a dependency proceeding has Native American heritage, efforts must be made to contact the appropriate tribe for intervention purposes. If the tribe isn’t known, then the Bureau of Indian Affairs, as an agent of the Secretary of the Interior, must be contacted. But what constitutes an American Indian child when some courts have said a grandfather who “had some Indian blood” is enough, and when parents don’t even have to know for sure they have Native American heritage? It isn’t always easy, but as Ben Jimenez, the ICWA program director for Oroville, Calif.’s Tyme Maidu tribe points out, it’s important. “If the tribe continues to lose children, there is going to be no tribe,” he says. Jimenez says there has long been “tremendous confusion” in the trial courts and social service agencies about how tribes define members. “They continue wanting to get into, “How is it the tribe arrives that [a child] is a tribal member?’” Jimenez says. “There’s a mind-set by some case workers who don’t understand the Indian culture and say that an ethnic group is getting special attention. “It’s based on treaties,” he says, “not ethnicity.” Social service officials say they’re fully committed to enforcing the ICWA, but admit there have been troubles in the past because notice provisions were scattered throughout California’s Welfare & Institutions Code. That changed this year with the passage of a bill that organizes the provisions under one set of statutes. “Now they are very clearly listed,” says Susan Diedrich, the Sacramento-based staff counsel for the California Department of Social Services. “That’s a constant reminder to the court staff and the county staff that we do have Indian children, and we do have a special responsibility to them.” Sylvia Pizzini, the Sacramento-based deputy director of DSS’ Children and Family Services Division, says that since only about 1 percent of the children in the state dependency system are American Indian children, social workers haven’t always been as well versed in the ICWA as they should. “We need to work with our child welfare staff so they are alerted to the need for noticing,” she says. California Gov. Gray Davis’ administration is committed to the task, she says, in that two members of her staff work directly with attorneys and tribes on ICWA. In addition, Pizzini says, the agency has a tribal advisory committee and a tribal liaison involved with Indian issues, particularly the ICWA. That gives hope for the future, but American Indian advocates say they continue to see cases in which judges and social workers ignore the ICWA or decide it doesn’t apply. “We see it a lot,” says California Indian Legal Services lawyer Newton, herself a member of the Cree Nation. “If you consider that only a fraction of the child proceedings are appealed, and you see this number of non-compliances on appeal, you can imagine how many are coming up at the trial level.” Figures for reversals in the ICWA cases aren’t available, but in the past 17 months California appeal courts have ordered remand in at least eight of 13 published ICWA cases, either for failing to provide proper notice or running afoul of the existing Indian family doctrine. In the spring edition of the Emory Law Journal, Barbara Atwood, a professor at the University of Arizona’s James E. Rogers College of Law, opines that by some accounts the ICWA “has been the victim of entrenched state court hostility ever since its enactment.” “Reported state court cases — often emerging from widely publicized disputes — have involved children who are caught in emotional battles that pit tribes against non-Indian prospective parents,” Atwood wrote. “Although the act has greatly strengthened tribal power in child welfare matters and has curbed the most blatant abuses among state authorities that were occurring prior to its enactment, the very visible ‘hard cases’ have polarized debates about social policies underlying the act.” NOTICE IS NOTICE The 4th District’s Dwayne P. is emblematic of the polarization. In that case, San Diego County’s Health and Human Services Agency had argued that there was insufficient indication that the twin boys were American Indian, and that under the 5th District’s 1995 ruling In re Pedro N., 35 Cal.App.4th 183, the 4th District lacked jurisdiction to proceed because the parents didn’t appeal the jurisdictional and dispositional order in which the juvenile court addressed the ICWA issue. The 4th District rejected Pedro N. and concluded that the courts have a continuing duty throughout dependency proceedings to ensure notice. “The parents’ inaction,” Justice McConnell wrote, “does not constitute a waiver or otherwise preclude appellate review.” That, experts say, means tribes have as much of an independent right to assert the act as do the parents. A few insist the ruling violates the individual’s rights in favor of the tribes’, but most say it just emphasizes the importance of tribal notice. “Notice is notice,” says referee Sobel, “and you’ve got to notice properly.” And, says Kathleen Mallinger, the San Diego solo practitioner and appellate specialist who represented the parents in Dwayne D., notice is required no matter how far along the case has progressed. “Juvenile dependency proceedings are cumulative, so a mistake made early on messes up the later hearings because the tribe has the right to intervene at any point in the proceedings,” she said. “It has the power to reverse all the way back to the beginning.” But Casey, of the San Diego County Counsel’s office, says that while he’s a believer in the ICWA, too often it is invoked as a last-ditch effort by parents who claim to be American Indian without any proof. “Being an Indian,” says Casey, who was born a member of Alaska’s Qawalangin tribe, “I kind of have an issue with someone who claims Indian heritage with the purpose of winning or prolonging a case. And that’s what happens in a lot of cases. That’s a cop-out.” Senior Deputy County Counsel Gary Seiser, Casey’s office mate and the lead lawyer in Dwayne P., has petitioned the California Supreme Court for review, citing conflicts between the lower courts. “Review is needed,” Seiser wrote, “to settle the important question of law regarding whether notice under the ICWA is required based on a mere hint or suggestion a child may have some possible Indian ancestry … or whether … notice is only required when the court knows or has reason to know the child is an Indian child as defined by the ICWA.” The high court, where the case is known as In re P. (Javon), S111526, has indicated it won’t make a decision until at least Feb. 10. Seiser also has requested that the appellate ruling be depublished. If review is granted, it would be surprising. The California Supreme Court — for reasons unknown — has never taken a major ICWA case, not even In re Santos Y., 92 Cal.App.4th 1274, in which the 2nd District last year upheld the existing Indian family doctrine in the face of 1999 legislation — backed strongly by tribes — that had declared it null and void. The ruling, authored by Justice Roger Boren, refused to let a 2 1/2-year-old boy be taken from the Los Angeles home he had known since he was 3 months old and relocated to a Chippewa tribe in Minnesota. The child’s lawyers had argued that his eventual connection with his natural tribe did not outweigh the trauma of being uprooted from a loving home. The court agreed, ruling that the existing Indian family doctrine applied. “The ICWA,” Boren wrote, “does not grant a tribe license to delay and to vacillate in making decisions that are vital to providing a dependent child with the permanent, stable home to which the dependency statutes entitle him.” Tribes virulently oppose the doctrine, which has split the nation. Ten states have adopted the doctrine, while six have rejected it. And in California, the appeal courts are in flux, officials say, with southern appellate courts generally favoring the doctrine and the northern ones opposing it. That has left trial court judges and social workers in limbo, and Indian advocates ready to try to get some unification. “What we are having to do is re-approach that deal,” says Jimenez, of the Tyme Maidu tribe. “Again, they have circled the wagons against us.” Deputy County Counsel Casey, of San Diego, says he believes the decision in Dwayne P., which makes it easier for parents to make a claim of Indian heritage late in the game, will increase claims under the existing Indian family doctrine. “I, as an Indian person, don’t want to see that whole doctrine raised more often in appeal court cases,” he says, “but I think based on this case it will be, and I don’t think the tribes have seen that. “Indian tribes may be facing a giant they can’t overcome,” Casey adds, “if mere heritage means you have to apply the ICWA.” All in all, advocates on both sides of the coin say no one opposes the Indian Child Welfare Act; rather, there are differences of opinion about how to enforce it. “It’s complicated because it is a separate child welfare system from that which applies to all other children,” says the DSS’ Pizzini. “It has a very special purpose, and with the efforts we are now putting in place, we can make it not be such a burdensome thing,” she says. “It has been difficult, but it’s our job and our responsibility to make it for every Indian child that the ICWA provision will be followed.”

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