The Indian Child Welfare Act Is Not Just An Oklahoma Statute
Video Transcribed: Does the Indian Child Welfare Act impact cases outside of Oklahoma? Short answer, yes. My name is Ryan Cannonie, I am the Tahlequah family attorney for the Wirth Law Office in Tahlequah. I’ve been doing deprived cases, CPS, however you want to call them, DHS cases for several years now, and one thing… I had a person call the other day from another state asking questions about the Indian Child Welfare Act.
And I said, “Well, I’m not licensed in your state, so I can’t really give you a full consultation, but I can tell you a little bit more, give you the right track, put you on the right road for to figure this out.”
So, the Indian Child Welfare Act is not just an Oklahoma statute. It’s not just a Texas statute. It’s not just a South Dakota statute. There’s a federal statute on this as well. There is also the Bureau of Indian Affairs, what they call guidelines, which give a better… because the statute itself is not great.
It’s pretty… leaves a lot to figure out. I wouldn’t say it’s vague because it’s not, but it doesn’t go to every issue. It uses terms and never defines them, that type of thing, so everyone’s scratching our head, “Well, what does this mean? What’s good cause?” That type of thing.
Well, these guidelines by the Bureau of Indian Affairs come in and help fill in the gaps there, and it’s what courts turned to rule on Indian Child Welfare Act cases. But a lot of people have questions of, Well, outside of Oklahoma, outside of a possible… like a reservation, or somewhere like that, does the Indian Child Welfare Act apply?”
And the answer is yes. Those are actually the places that the Indian Child Welfare Act was made for. It was not designed or made for cases that happen on reservations. It’s actually for… Got some history here.
Back in, not even that long ago, within the 1900s, like in 19… I think up to the 1940s or 50s, somewhere in there, the US Government still had a system in place for what they call the assimilation doctrines. Those even continued on into the 60s and further.
And what that was, was a lot of these schools, you see, especially in Oklahoma, older schools, they call them seminary schools, or Indian seminaries, well, a lot of those schools were designed to take individuals, especially children, away from tribal situations where they’re them away from their culture and make them integrated into a more Anglo-Saxon type community. They changed their clothes.
There’s a really good quote and I forgot who it’s from. It’s at one of the Native American museums. It’s an exhibit and it shows a chair with hair all around it and it’s, “They cut our hair, they took our clothes and when we came out, we were no longer ourselves.”
I’m butchering that quote, but that’s basically what happened, is they decided that the Native American culture was not going to work in American society; so they would try to assimilate these children, and even some older members, into a more Anglo-Saxon and European style living situation.
Now, by the time the government figured out that was a bad idea, this was already ingrained in a lot of places and when they started looking at the statistics on it, most… I want to say it was 80% in some places… and that could be a bad statistic, but I’m pretty sure it’s 80%… in some areas, of Indian children were removed from a tribe, a tribal home, with their parents within a cultural situation were never sent back and we’re usually adopted by Caucasian people.
So you saw the breakdown of the tribal… not just tribal governments, but tribal unity, the culture, lots of languages got lost: your creation stories, your folklore, all that. Anything that went with tribes started being lost.
So the Indian Child Welfare Act came along to try to prevent that. So if you are in a state situation, whether you’re Oklahoma, whether you’re Connecticut, and you take a child who is Native American, or is enrolled in a tribe or eligible for enrollment in a tribe, out of their home, put them somewhere else, then you have to follow the Indian Child Welfare Act.
Now, Oklahoma’s Indian Child Welfare Act, with one or two exceptions, which is just some wording in there, it mirrors the federal statute, and a lot of states mirror the federal statute. So, knowing what the federal statute says is really helpful. Because if your state doesn’t follow the federal statute, Native American issues, anything involving Native Americans, is really a federal issue, then that’s the one your court should be following.
So, a question I got out of another state the other day was, “Hey, we’ve told them we’re native; they don’t believe us. They won’t even check it out. Now they’re trying to terminate our parental rights. Can they do that?” I was like, “Well, technically they can terminate them, well the judge can sign it off on it.
But if you’re Native American and they didn’t follow ICWA, then that’s an invalid termination. You can get your kids back after that. You might still have to work a plan; you may still have to restart your case, but they can’t terminate your parental rights unless they follow the Indian Child Welfare Act if your children fall under it.”
So, long story short, if you fast-forwarded to this point, doesn’t matter where you live, the Indian Child Welfare Act will apply if we’re talking about state governments. If we’re talking about tribal governments, the Indian Child Welfare Act doesn’t really apply there, but most tribal governments I know had instituted a lot of the Indian Child Welfare Act provisions in their own CPS statutes.
So, if you find yourself in a case, a situation, I’m licensed in Oklahoma, I’m licensed with the Cherokee Nation. I’m working on Creek Nation right now, but if you find yourself in these situations and you have questions about your juvenile deprive case.
There are people, one I talked to here recently, moving from another state to Oklahoma, asking, “Hey, we’re native. We can prove it, but they’re not doing what they’re supposed to here in our state, but it turns out we’re moving to Oklahoma. Would you represent us in Oklahoma?”
And I said, “Sure. I can’t represent you right now,” because I’m not licensed in whatever state they were from, “but when you get to Oklahoma, give us a call; we can work out an agreement and I’ll get in on the case.”
But it doesn’t matter if they’re moving here and trying to transfer their case here or if the case was started here originally in Oklahoma. If the court is not following the Indian Child Welfare Act and it applies to your case, then the case has major issues.
I’ve seen cases where the court has gone ahead and terminated parental rights and then that had to be vacated. There are lots of appellate cases on that issue alone. So, give us a call. We can do a consultation and see if we can help you.
