February 2013 Bar Bulletin
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February 2013 Bar Bulletin

Tribal Interests Cloud Indian Child Welfare Proceedings

By Kim Schnuelle


The history of Indian child welfare laws in the United States is a long and checkered one. Whether it was because of racial prejudice, religious values or simply a desire to obtain access to a child's tribally held funds, thousands of Indian children were forcibly sent to boarding schools for "education and training" in the late 1800s.1 While so held, they frequently suffered strict physical discipline, were typically prohibited from speaking their native languages, and were often instructed to purge themselves of all traces of Indian culture.

Culturally insensitive social workers also removed Indian children from their families, simply disregarding the extended family, child-rearing style of many tribes and concluding that the children had been abandoned.2 In Washington, for example, more than 19 times as many Indian children were sent for adoptive placement and more than 10 times as many Indian children were placed in foster care than the documented rate for Caucasian children.3

Such displacement of Indian children from their families frequently resulted in severe emotional and psychological damage to the children due to "ethnic confusion and a pervasive sense of abandonment.4"

Against this backdrop of fragmented families and cultural damage, Congress passed the Indian Child Welfare Act (ICWA) in 1978.5 ICWA was intended to be remedial in nature and to limit state jurisdiction, while expanding tribal authority over Indian child adoption and foster care placement. For ICWA to apply, the child must be an Indian child as defined by the statute6 and the pending action must meet the statutory definition of a "child custody proceeding" - a definition that is limited to: 1) foster care placement; 2) termination of parental rights; 3) pre-adoptive placement; or 4) adoptive placement.7

Since 1986, Washington has been instrumental in expanding the application of ICWA under its "foster care placement" prong. State courts also have had to grapple with balancing the standard "best interests of the child" guidelines with ICWA's mandate for tribal involvement and consideration. This article discusses this expansion of ICWA's applicability, the occasional conflict in governing standards and what it may mean for tribal sovereignty in the region.

In 1986, Division 1 of the state Court of Appeals considered the petition of two non-Indian grandparents who sought custody of their Indian grandchild based upon the claimed unfitness of both parents. This was the first case of substantive note interpreting ICWA in Washington.

The child's Indian father appeared and filed a counter-petition seeking custody. The father did not appear at trial and the court granted the grandparents' petition. The Tulalip tribe moved to interĀ­vene and vacate the order. Its motion was denied and the tribe appealed. In the interim, the custody order was modified and the child was placed with his mother, with a reversion to the grandparents if she later became unfit.

In In re the Custody of S.B.R.,8 the court found that the tribe had not received adequate notice, vacated the decision and remanded the case for further review. The court also concluded that non-parental placement constituted "foster care placement" under ICWA as the father could not have the child returned to him upon demand, but rather would be required to modify the custody decree pursuant to RCW 26.09.260 for return of the child.9 The court ruled as such, even though the child had never been part of any "Indian family relationship"10 and was not removed by a public or private social welfare agency.11

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