The Indian Child Welfare Act Was Originally Designed to Prevent the Assimilation of Native Children Into Caucasian Society
Video Transcribed: Are you a foster parent that just had children removed because your house is not compliant with the Indian Child Welfare Act? And you’re wondering, what do I do and how do I fight this? Can I fight this? Hello, my name is Ryan Cannonie, I’m an CPS Defense Lawyer with the CPS Investigation Defense Law office. And today I’m going to talk to you a little bit, as foster parents, what rights you have to fight the removal of children who are classified as Indian Child Welfare Act eligible from your home.
So, the first thing is a little history lesson. I talked about this before, but the Indian Child Welfare Act was originally designed to prevent the assimilation of native children into Caucasian society. Basically. What you had was, I want to say it was like 85, 90, somewhere, it was an extremely high percentage of Indian children being removed from their families, their culture.
And then, when they would go through the court system, they would actually be placed in mostly Caucasian homes and separated from their cultural heritage. This had an effect, not only on the children, but it also severed any ties they had to their tribal governments, to their identity. And it started a wave of lowering the populations of most tribes.
So, the Indian Child Welfare Act was enacted federally. Most states, including Oklahoma, have a version. The Bureau of Indian Affairs puts out guidelines that have the same authority as law, as it relates to the Indian Child Welfare Act.
And, if you are a foster parent with children in Oklahoma, specifically in Cherokee County, Tahlequah, where I office from, you have a very high chance of coming into contact with issues that arise based on the Indian Child Welfare Act.
So, what are some things you can do to kind of stop this? Well, the first thing is, and the thing that’s used most often is, if there are no tribal homes available, no certified tribal homes. And, if there are no homes available, then the tribe has a hard time arguing that the child should be removed. There are reasons that you can keep the child or children in your home. We call those good cause, that there is a good cause to keep them there.
The Indian Child Welfare Act lists out several different tiers of preference on where children should be put if they are a member of a tribe or eligible for enrollment in a tribe. So, the first is with family. Second is going to be members of their same tribe. Third is going to be members of any tribe. And then, it kind of gets more attenuated after that.
If you don’t fall, especially into those first three, there’s a few options left to you, but you’re going to have to fight pretty hard most of the time. And having an attorney that understands that and understands both how the State ICW Act, the federal ICW Act, the Bureau of Indian Affairs guidelines, how those interact with each other is very important. Not only that, but understanding what courts will do.
As a prosecutor for seven years, I’ve been on both sides of this issue, both saying that children should be removed by law, and then also saying that there was good cause in fighting different tribes to keep children in the placement they were in. Sometimes these placements, the children have been there for two, three, five years, while a case worked its way through court. And they’ve bonded with their foster family and the foster family has bonded with them.
And they consider them part of the family. To have them removed is not something that most want to think about. And, over my career, I’ve heard the arguments made about psychological trauma, the bonding, everything like that.
And unfortunately, the Indian Child Welfare Act, the BIA guidelines say that psychological… it has to be very extensive psychological trauma beyond what most can prove in court. I personally believe that the bonding and the psychological impact of removing a child who has already been part of the court process should rate higher. But they didn’t ask my opinion on that.
So, what can you do? Well, if they do have a certified tribal home, one good way to prevent removal is to get the parents on your side, if the parents are still in the case. If the parents and you can agree that the parents think your home is the best place for them, and if the parents, this is the key here, have reviewed the other placements, then they can go to the court and ask that the court find good cause to keep them in your home. That is a perfect good cause reason. And then, there’s nothing that can be argued to remove them from your home.
This fails all the time. I’ve seen it repeatedly fail because attorneys advise their clients to get the parents to agree with them, but they never review any placements. And, unless you review the placements, then this doesn’t apply. You can’t just do step one and two. You got to go all the way to three for it to work. And having an attorney that understands that and understands not only how the state and federal and guidelines all interact is extremely important in any case, but very important for foster parents who want to keep children in their home.
There are several other good cause reasons you can use to keep children in your home. And, if you are finding yourself in this situation and want to try to keep the children you’ve had, you’ve bonded with in your home, give us a call. And give us a call quickly because, once DHS sends you that letter, written notice that your children are being removed, you have a very short window to actually object to it. Please give a Oklahoma DHS attorney a call and we can help you with your legal matters.