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TRIBAL ALERT!
February 2, 2005  

OPPORTUNITY TO PROVIDE FEEDBACK:
PROPOSED LEGISLATION TO IMPROVE COMPLIANCE
WITH INDIAN CHILD WELFARE ACT

A tribal initiative is in the works to introduce state legislation to improve compliance by state courts and county agencies with the Indian Child Welfare Act (ICWA). This alert is to inform you of the initiative and invite your comments, support, and/or participation.

ICWA protects the unique interests and rights of Indian children, families, and tribes. These rights are undermined by the continuing failure of some state courts and county agencies to follow the express provisions of the ICWA and to honor its spirit and intent.

California Indian Legal Services (CILS) is working with the Pala Band of Mission Indians to amend state law to ensure improved compliance with ICWA. Senator Denise Ducheny has agreed to sponsor such a bill. Although a bill has not yet been drafted, the amendments we are considering include:
  • Amend the Probate Code and Family Code to affirm that guardianship and adoption proceedings under those statutes are subject to ICWA.
  • Amend the Probate Code and Family Code to affirm that, in guardianship and adoption proceedings subject to the ICWA, Indian parents who cannot afford to hire an attorney are entitled to a court-appointed attorney.
  • Amend the Probate Code and Family Code to incorporate by reference Rule of Court Rule 1439, which reiterates all of the requirements of the ICWA but is only currently applicable to juvenile court proceedings.
  • Amend the Welfare and Institutions Code, the Probate Code and the Family Code to ensure that the notice requirements are consistent with ICWA, federal regulations (25 C.F.R.§ 23.11), and Rule 1439.
  • Amend the Welfare and Institutions Code, the Probate Code, and the Family Code to permit courts to grant standing to an Indian child’s tribe even though the child doesn’t meet the definition of “Indian Child” in ICWA because the child is not eligible for membership in his/her tribe or is descended from a non-federally recognized tribe.
  • Amend the exceptions to adoption contained in the Welfare and Institutions Code to protect the unique interest of Indian children, Indian custodians, and relative caregivers.
  • Amend the Family Code to permit tribes to be parties to postadoption agreements in involuntary adoptions (they currently have this opportunity in voluntary adoption cases).
  • Amend the Family Code to require reconsideration of proceedings prior to the finalization of an adoption when prospective adoptive parents refuse to negotiate postadoption agreements in good faith and the adoption was ordered in part because of their representations that they would enter into such an agreement.
  • Amend the Welfare and Institutions Code to clarify what ICWA requires of the juvenile court and county agencies in delinquency cases.
  • Amend the Welfare and Institutions Code to prohibit a county from calling its own social workers or other employees to serve as its expert witness for the purpose of terminating parental rights.
  • Amend the Welfare and Institutions Code to affirm that active efforts must be made to prevent the break-up of the Indian family, regardless of state law exceptions to the contrary.
  • Amend the Welfare and Institutions Code to affirm that state public policy recognizes exceptions to adoption and therefore tribal acts, records, or judicial proceedings establishing alternative permanent plans for Indian children must be afforded full faith and credit and considered when placing Indian children and selecting permanent plans for them.
  • Amend the Welfare and Institutions Code to require that the serious harm finding required under ICWA prior to termination of parental rights be made at the same hearing at which parental rights are to be terminated (rather than some time before).
  • Elevate the requirements found in Rule 1439 to the level of state law by incorporating those requirements in appropriate related provisions of the Welfare and Institutions Code.

What action can your tribe or tribal agency take at this time?

If you have immediate suggestions or comments you would like to be considered during the drafting period, please e-mail them to jwillisnewton@calindian.org by February 11, 2005. Once a draft bill is completed, we will send it out with another tribal alert to solicit your support and provide an opportunity for additional feedback.

For more information

For more information about this work or how you can participate, please feel free to contact Joanne Willis Newton, Senior Staff Attorney at CILS Escondido Office. Phone (800) 743-8941, ext. 114.

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