The Indian Child Welfare Act — ICWA — was passed in 1978 in response to a crisis in Indian Country: children were being placed in non-Indian foster families and losing their culture and language in the process. This was not just a threat to those children whose well-being was at stake, but also to the tribes whose connection between the past and future was in danger.
The foster care crisis was just another in a long line of historical tragedies that chipped away at sovereignty and culture, including outright genocide, the reservation system, the outlawing of Indian religions, boarding schools, and relocation.
ICWA gave tribal governments exclusive jurisdiction over Native American children who reside on reservations, and it gave concurrent, but presumptive jurisdiction over foster care placement proceedings for Native American children who do not live on the reservation. In other words, cases that occur on the reservation or tribal lands are handled in tribal court; cases that occur off reservation or tribal lands are handled in county court. There are times when cases with county jurisdiction can be transferred to tribal court if both parents agree to the transfer. After which, tribal court must accept the case.
Mille Lacs Band Family Services and the Mille Lacs Band Office of the Solicitor General (OSG) work together on all cases. Each case is different and does not always fit in a nicely packaged scenario. Both Family Services and the OSG have different job responsibilities, but they both have the ultimate goal of family preservation and reunification.
According to Mike Hogan, an attorney with the OSG, ICWA gives Bands a kind of “veto power” over counties that attempt to place tribal children in non-tribal homes.
Today at Mille Lacs, ICWA cases in counties around the state account for a large percentage of the work undertaken by the attorneys in the OSG. Several attorneys are on the road once a week or more to far-flung counties where hearings are held. Family Services case workers are often present in courtrooms across the state as well to monitor ICWA cases along with the OSG.
Diane Sanders is a Leech Lake member who has worked in the Twin Cities Indian community for years and is now an ICWA social worker with the Band. In most cases, Diane said, ICWA works as intended. She may be notified of a case where a county is attempting to place a child with a non-Indian foster family. "We’ll step in, find out who the county social worker is, and make sure they're aware of ICWA and that the tribes have a voice in the matter." Minnesota also has the Minnesota Indian Family Preservation Act — MIFPA.
Everyone wants what’s best for the child, and usually that’s reunification with a parent who has made changes in their life. Along the way, though, foster care may be necessary, and a community effort is needed to ensure that the child finds the best care available — both short- and long-term.
At Mille Lacs, the need for foster families is ongoing and at times desperate. When children have been removed from their families, it has been difficult at times for Family Services to find foster care placements with family or other Band members.
Nicole Anderson, Mille Lacs Band Commissioner of Health and Human Services, said, "When children are removed from a home there could be a variety of reasons including mandated report, substance abuse, neglect, child abuse, and sexual abuse to name a few. These processes can go a variety of ways depending on circumstances related to the case.” Nicole added that parents often receive recommendations from the court that may include Rule 25 assessments, counseling, therapy, substance abuse treatment, anger management, etc. If these recommendations are not followed through on, it could slow or prevent the reunification process from proceeding. These plans are not one-size-fits-all plans and may change throughout the duration of the case as parents meet their obligations or not.
The Mille Lacs Band offers many services that may be required by court. “Family Service staff can help the parents navigate the systems so they are successful in completing their recommendations,” Nicole said. MLBO-HHS will help parents with medical insurance, Rule 25 assessments, treatment, medical appointments, and can also be a bridge to other helpful programs.
Bottom line: What’s best for the kids
One common misunderstanding of ICWA is that the top priority is to place foster children in Band member families. In Tribal Court ICWA cases and adoptions, Band members are given priority, but in state court, the order of priority in foster care placements is (1.) extended family, (2.) a foster home licensed or approved by the Band, and (3.) an Indian foster home licensed or approved by someone other than the tribe (like the county). (There is a separate ranking system for adoptions.)
In many cases, but not all, the foster parents will be Band members. Many children have a parent from a different tribe or a non-Indian parent, so the child may be placed with a non- Band member if no Band member relative is available.
"We’d like it to be a Band member, but there’s nothing in the law that says it has to be," said Mike.
Nicole added, "The process can be difficult to understand, and all parties may not necessarily agree. Family Services is available to help every step of the way. What is important to remember is the focus is always on the child's best interest."
Diane pointed out the most unfortunate misunderstanding of ICWA: "Some of our families think ICWA was put in place to take their kids away, but that's not the case," said Diane. "ICWA is there to help them keep their kids. We're here to help families, not to work against them. The bottom line is what's best for the kids, and the best thing for the kids is to be with their families and relatives in the culture they grow up in."
Often times the case begins when a mandatory reporter — teacher, health care worker, or law enforcement officer — sees or hears something that he or she is required by law to report.
After the initial report, an emergency protective care hearing is scheduled, and the OSG’s office and Mille Lacs Band Family Services are notified by the county where the hearing is scheduled. OSG assigns an attorney, and Family Services assigns a social worker as liaison.
In most cases involving county court, OSG and Family Services will be there in person. This is not true of all tribes, but Mille Lacs has a long history of close involvement in ICWA cases. Mike Hogan said, “It’s really, really important for us to be there in person so the judges, county attorneys, and social services in all these counties know we’re engaged and that the Band cares about these cases.”
After the hearing, things can go in different directions, but usually a case plan is ordered that under Minnesota law gives parents a year to comply. In tribal court, however, there is no one-year deadline, so cases are sometimes open for years.
According to Ashley Burr and Tabatha Boyd of MLB Family Services, families will have an assigned social worker, and will expect monthly home-visits. Team meetings will occur to assist the family with developing a Plan of Care in which the parents, family members, Guardian ad litem and the county worker have input in developing. Referrals will be made towards achieving the set goals. Families will be provided visitation with their child(ren). Fuel vouchers or transportation by the Department are available when needed.
If the parent doesn't comply with the order within a year, a permanent solution is sought, which may include termination of parental rights and adoption.
In Diane's experience, most cases end well. “The main focus is to make sure it's a good happy ending for the kids," she said. "It can be stressful. Sometimes not everybody's happy, but if we're working toward same goal, the welfare of kids, it's very rewarding, especially when we see a family reunited."
How you can help
There is an ongoing need for foster families in all Mille Lacs Band communities. If you are willing to become a foster parent, or you know someone else who is, please contact Mille Lacs Band Family Services at 320-532-4181.
TRIBAL ICWA CASES — STEP BY STEP
The Mille Lacs Band Family Services District I office is the designated point of entry for all incoming mandated reports. The reports are received by telephone, facsimile, email, or in person. The reports are received from law enforcement, schools, hospitals, health providers, other social service agencies, service programs, family members, community members, and others. The Intake and Referral Screener prepares documentation for screening, enters the information into the registry, and a screening team meeting is held based on criteria according to Mille Lacs Band Statute. The Family Services screening team will screen “in” or screen “out” or cross report “out of jurisdiction.” Reports that are screened out can include referrals to other agencies. Reports that are screened in are assigned to an investigator who starts one of these types of investigations: Facilities Investigation, Family Assessment, or Child Protection Investigation.
In most cases, interviews begin immediately to ensure the safety of the child. The assigned investigator will meet with the child or legal guardian to gather information and determine whether the child is in immediate danger by what may or may not be in the report. The investigator will then meet with other professionals or family members, if necessary, to gather additional information. The investigator will meet with the parents to inform them of the report and depending on the report, the parent will be interviewed to address the concerns.
The investigator’s interview is aimed at obtaining information regarding the alleged abuse, neglect or maltreatment and safety of the child, parents and family which includes, what happened: when and where the alleged abuse or neglect occurred, the child’s current condition, other effects of abuse, neglect or maltreatment, contact with all persons having information or knowledge regarding the family dynamics and alleged abuse, neglect or maltreatment and the protective capacity of the family. Based on the information gathered, the investigator will need to make a decision should a child or children need to be placed outside of the home or if not. Safety Planning will occur to prevent out-of-home placement.
Should the investigator determine a child is safe in the home, the investigator may close the Family Assessment or investigation immediately should the family not request or identify any further assistance.
If the investigator determines a child or children are in immediate danger, a 72-hour hold will be filed with Tribal Court, the Tribal Police Department, Mille Lacs Band OSG Office, Mille Lacs Band Foster Care, and the agency of the county where
the child resides. The family will be informed of the 72-hour hold (initial hearing) by being served by Tribal Police. The investigator will make reasonable efforts to inform the parents of the initial hearing. The purpose of the initial hearing is to determine whether it is reasonable to believe that continuing absence from the home is necessary to protect the well-being of the child. The case plan is voluntary during the initial and 30-day hearing, until the case is adjudicated.
A second hearing will be held within 30 days following the initial hearing if ordered supervision of the court was ordered in the initial hearing. The purpose of the 30-day hearing is for the court to reassess whether continuing court intervention is necessary.
If the problems are not resolved at the initial or 30-day hearing, the court will set a formal trial on the issues. Should the case be adjudicated, the parents’ case plan is no longer voluntary but will be court ordered and need to be followed for reunification to happen.
Families’ rights while working with MLB Family Services:
Families involved with Mille Lacs Band Family Services have the right to be treated with respect, courtesy, free of discrimination of services, to be an equal participant, to be informed at all stages of the process, to practice personal spiritual beliefs, to be present at court hearings, to have all reasonable requests addressed promptly, to participate in team meetings, and to have input in the Plan of Care.
Families are expected to keep their scheduled appointments, treat staff with respect and courtesy, attend all court hearings, actively work on the Plan of Care, remain in contact with the assigned social worker, to identify other people or family members to assist with achieving their case plan, and to keep the department informed of their contact information and/or address.
Services not provided by MLB Family Services:
Mille Lacs Band Family Services does not provide services for custody hearings, Elder abuse, domestic restraining order, harassment restraining order, or provide recommendations in private guardianships. Family Services will provide information to direct people to the right Department.