Sharing Our Stories of Survival: Native Women Surviving Violence (56 page)

Conclusion

While the Indian Child Welfare Act has limited application in the context of domestic violence, in those situations in which it does apply it can have a significant impact on the outcome of custody determinations. It is essential that both advocates and attorneys involved in assisting victims of domestic violence in child custody matters be sufficiently informed about the applicability and consequences of the act. This will permit them to make use of the act’s helpful provisions and avoid any negative consequences.

Notes

1
  
The Indian Child Welfare Act,
25 U.S.C.§ 1901 et seq.

2
  The “Indian Adoption Project,” available at
http://darkwing.uoregon.edu/~adoption/topics/ICWA.html
.

3
  B.J. Jones, “The Indian Child Welfare Act: The Need for a Separate Law,” available at
http://www.abanet.org/genpractice/magazine/1995/fall/indianchildwelfareact.html
.

4
  American Indian Child Resource Center, “American Indian Child Welfare Act,” available at
http://www.aicrc.org/icwa.html
.

5
  Arizona Department of Economic Security Reports, “Provision of Child Welfare Services to Indian Children and Families,” Arizona (1977). Unpublished report.

6
  
Mississippi Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 50 n. 24. (1989).

7
  25 U.S.C. §§1901(3), (4) and (5), Congressional Findings.

8
  25 U.S.C. §1902, Congressional Declaration of Policy.

9
  
Matter if Adoption of Child if Indian Heritage,
III N.J. 155, 543 A.2d 925, 930 (N.J. 1988).

10
  
Matter of Appeal in Pima County Juvenile Action No. S-903,
130 Ariz. 202, 204, 635 P.2d 187 (Ariz.App. 1981), cert. Denied 455 U.S. 1007 (1982).

11
  
Mississippi Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 45 n. 17 (1989).

12
  Eligibility for enrollment is determined by the law of the child’s tribe. In
re Adoption of Riffle
, 902 P.2d 542, 545 (Mont. 1995).

13
  
People ex rel D.T,
667 N.W2d 694 (S.D.2003).

14
  
In re Jeffrey
A.
, 103 Cal. App.4th 1103, 1107, 127 Cal. Rptr.2d 314 (Cal.App.2002).

15
  
People ex rel
T.I
.,
707 N.W2d 826, 834 (S.D.2005).

16
  
In re Welfare of Children of J.B.,
698 N.W2d 160, 166 (Minn.App.2005).

17
  
People ex rel TI.,
op. cit.

18
  25 U.S.C. §1903(5), Definitions.

19
  
John v. Baker,
982 P.2d 738, 759 (Alaska 1999).

20
  25 U.S.C. §1903(8), Definitions.

21
  25 U.S.C. §1903(1), Definitions.

22
  
See
JW. v. R
.
J
., 951 P2d 1206, 1213 (Alaska 1998), and cases cited therein.

23
  25 U.S.C. §1913, Parental rights; voluntary termination, and 24 U.S.C. §1912, Pending court proceedings.

24
  A status offense is an offense committed by a juvenile that is only an offense because of the child’s status as a juvenile and that would not be an offense if committed by an adult, such as drinking and truancy.

25
  25 US.C. §1903(1), Definitions.

26
  
In re Crystal K.,
226 Cal.App.3rd 655, 276 Cal.Rptr.619 (1990).

27
  
Mississippi Band of Choctaw Indians v. Holyfield,
490 US. 30 (1989).

28
  
In re Adoption of
Baby
Boy L,
231 Kan. 199, 643 P.2d 168 (1982).

29
  
In re Adoption of Baby Boy L.,
op. cit.

30
  
Matter of Adoption of Crews,
118 Wash.2d 561, 825 P.2d 305 (1992).

31
  
In re Bridget R.,
49 Cal.Rptr.2d 507, 529-30 (Cal.App.1996).

32
  See
Michael J, Jr. v. Michael J,
Sr.,
198 Ariz. 154, 7 P.3d 960 (App.2000);
State, In the Interest of D.A.C,
933 P.2d 993 (Utah App.1997);
In
re
Adoption of Child of Indian Heritage,
III N.J. 155, 543 A.2d 925 (1988).

33
  
Black’s Law Dictionary,
7th Ed., p. 855 (1999).

34
  
Matter of NS.,
474 N.W2d 96, 100 (S.D.1991) (Sabers, J. Concurring).

35
  
Matter of Adoption of Halloway,
732 P.2d 962, 966 (Utah 1986).

36
  25 U.S.C. §1911(a), Indian tribe jurisdiction over Indian child custody proceedings; (a) Exclusive jurisdiction.

37
  See, 49 C.J.S., Judgments §§449-451, regarding validity of judgments.

38
  
Mississippi Band of Choctaw Indians v. Holyfield,
op. cit. at 45.

39
  
Mississippi Band of Choctaw Indians v. Holyfield,
op. cit. at 48.

40
  
Matter of Appeal in Pima County Juvenile Action No S-903,
130 Ariz. 202, 204, 635 P.2d 187 (Ariz.App.1981), cert. Denied 455 U.S. 1007 (1982).

41
  25 U.S.C. §1911(a), Indian tribe jurisdiction over Indian child custody proceedings; (a) Exclusive jurisdiction.

42
  25 U.S.C. §1922. Emergency removal or placement of child; termination; appropriate action.

43
  25 U.S.C. §1922. Emergency removal or placement of child; termination; appropriate action.

44
  25 U.S.C. §1911(b), Indian tribe jurisdiction over Indian child custody proceedings; (b) Transfer of proceedings; declination by tribal court.

45
  
Mississippi Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 36 (1989).

46
  25 U.S.C. §1911(b), Indian tribe jurisdiction over Indian child custody proceedings; (b) Transfer of proceedings; declination by tribal court.

47
  
Matter of Appeal in Maricopa County Juvenile Action JS-8287,
171 Ariz. 104, 108, 828 P2d 1245, 1248 (App.1991).

48
  44 Fed.Reg 67591; see also, House Report No. 95-1386, 1978 U.S.C.C.A.N.

49
  44 Fed.Reg 67591.

50
  25 U.S.C. §1912(d), Pending court proceedings; (d) Remedial services and rehabilitative programs; preventive measures and 25 U.S.C. §1912(f), Pending court proceedings; (f) Parental rights termination orders; evidence; determination of damage to child.

51
  25 U.S.C. §1912(e) and 25 U.S.C. §1912(f).

52
  
Matter of Appeal in Maricopa County Juvenile Action JS-8287,
171 Ariz. 104, 113; 828 P.2d 1245, 1254 (App.1991).

53
  25 U.S.C. §1912(e) and 25 US.C. §1912(f).

54
  House Report No. 95-1386,1978 U.S.C.C.A.N. at 7545.

55
  
Matter
of N
.
L
., 754 P.2d 863, 867 (Okla.1988).

56
  44 Fed. Reg. at 67593.

57
  57 25 U.S.C. § 1912(e)

58
  25 U.S.C. §1915(d), Placement of Indian children; social and cultural standards applicable.

59
  25 U.S.C. §1915(b), Placement of Indian children; (b) Foster care or preadoptive placement; criteria; preferences.

60
  
Matter
of
Appeal in
Coconino
County Juvenile
Action J
-
10175
, 153 Ariz. 346, 349, 736 P.2d 829, 832 (Ariz.App.I987).

Questions

1. A common threat made by a perpetrator of domestic violence to a Native victim is “I am going to report you to social services for child abuse.” If you are a Native victim living off the reservation, how might the Indian Child Welfare Act help you, if a report is made?
   
2. What are “active efforts”? How do you think “active efforts” are different than efforts in a non-ICWA case?
   
3. What type of cases does ICWA apply to?
   
4. What were the key purposes for enacting ICWA? Do you believe it has made a difference since its enactment?
   
5. What are the pros and cons of transferring an ICWA case from state court to a tribal court for a Native woman, if the tribal court is the tribe of the abuser, not her tribe?
   

In Your Community

1. Does your tribe respond to ICWA cases throughout the United States? What type of structure or infrastructure do they have to ensure that they can assertively respond? Describe a common response?
   
2. Do social services in the state in which you reside adequately train social workers and judges on the requirements of ICWA? If not, what can be done to adequately provide training?
   
3. Do the state courts in your area follow ICWA requirements in child protection cases? What could you or your tribe do to improve their response?
   

Terms Used in Chapter 18

Beyond a reasonable doubt:
Proof that results in being fully satisfied and entirely convinced of a fact and circumstance.

Burden of proof
: In the law of evidence, the necessity to affirmatively prove a fact, facts, or issue.

Concurrent
: Existing at the same time.

Clear and convincing:
Proof that results in a reasonable certainty of the truth or fact. Requires more than a preponderance of the evidence and less than proof beyond a reasonable doubt.

Dependency proceeding:
A formal court proceeding to determine if a child’s welfare requires a state or tribe to intervene. Other names: child protection proceeding or child abuse and neglect proceeding.

Domicile
: A person’s legal home.

Illegitimate:
Born to parents who are not married to each other.

Imminent
: About to happen, near at hand.

Preponderance of the evidence:
A degree of proof that is more probable than not.

Presumption
: An inference (something that is implied) in favor of a particular fact.

Unwarranted
: Not justified or deserved.

Suggested Further Reading

Indian Child Welfare Act: California Judges’
Benchguide
(2000), available at
www.calindian.org/icwa.htm
.

Larrington, Jane.
Overview for Judges on the Indian Child Welfare Act and Domestic Violence
(12/22/03). Southwest Center for Law and Policy, available at
www.swdap.org/article5.pdf
.

National Indian Child Welfare Association website,
www.nicwa.org
.

Spears, Linda.
Building Bridges Between Domestic Violence Organizations and Child Protective Services.
(February 2000), available at
www.vawnet.org/NRCDVPublications/BCSDV/Papers/BCS7_cps.php
.

Tribal Law and Policy Institute website:
http://www.tribal-institute.org/lists/icwa.htm
.

NO ESCAPE

Anger erupts from anger delivered,
living day to day, night to long night,
trying to avoid the pain that is always home.
Home is the ache of cruel words, and
the silence that is required to survive.
Like the air we breathe, we cannot avoid it, and we cannot see it; we live with it,
and don’t know how to survive without it.
It’s a trap we know is set, to step around, and accidentally trip.
Long shadows mean that safety is over, it’s time.
Walking into the ambush is the daily routine.

That necessary invisibility that was learned as a child lives on.
It seeps through my skin, controls my words, and makes my choices.
I participate unwillingly, thinking this is love, this is home ...
Until I realize that it’s safer to be alone.

I can’t talk, because then I would have to admit what is real and what is not.
I want to go back and be a child.
I want to sing, I want to play, I want to be numb.
Until, one day, the swollen river overflows its banks,
The storm is raging; you can’t control nature, or understand its power.
It doesn’t matter if I love you, it is power, and it is everywhere.

What about my people,
can this be tradition?
No, we are lost, following a new familiar path:
Wanting to hurt, but not hurt ourselves?
We dance, we sing, we laugh, we have ceremonies,
and we have funerals.
We poison ourselves and each other,
watch one another in slow deliberate suicide,
grasping, clutching, thinking: this is life itself.

Anonymous

Chapter 19

The Role of Probation in Providing Safety for Native Women

GEORGE TWISS