Abbey Center Event Recap: “Nuts and Bolts of the Indian Child Welfare Act”

Picture Courtesy of the Indian Child Welfare Act Law Center, located in Minneapolis, MN

On December 1, 2011 I attended the Abbey Center expert lunch event “Nuts and Bolts of the Indian Child Welfare Act” with guest speaker Elizabeth Rosenbaum. Mrs. Rosenbaum is a solo practitioner who specializes in family law issues, including divorce, custody, and adoption. But perhaps one of the most interesting aspects of Mrs. Rosenbaum’s practice is that she is an expert on the Indian Child Welfare Act (ICWA) and has worked with approximately fifty to sixty different Native American tribes throughout her career. She has also been called as an expert witness on the ICWA on many occasions.

Before attending this event, I had relatively little knowledge of the ICWA. Luckily, I was able to learn a lot about the history of the act and its importance to the practice of family law today by listening to Mrs. Rosenbaum’s experience working with the ICWA.  As she explained to us, the ICWA is a federal law that was passed in 1978 and subsequently codified in 25 U.S.C. § 1901. One of the main goals of the ICWA is to protect Native American children and to preserve the Native American cultural identity of these children. The ICWA applies in cases involving topics such as juvenile rights, termination of parental rights, adoption, and guardianship. Essentially, anytime a child is taken from his or her parents, the ICWA applies. Therefore, the ICWA does not apply in divorce or paternity cases. One of the requirements under the ICWA is that if a child is removed from his or her parents, the tribe must be notified by registered mail of the removal. There is also list of preferences that tribes have. First, tribes prefer that the child be placed with a member of the child’s family if possible. Second, a member of the same tribe. Lastly, the preference is for the child to be placed with any other Native American tribe.

One of the biggest problems that Mrs. Rosenbaum mentioned was that there are very few Native American foster homes and approved home studies, which means that a majority of the time, they are forced to look outside of the tribe’s preferences. Mrs. Rosenbaum also mentioned the fact that many times when social workers observe potential homes where large groups live together (which is typical for Native Americans, who often live with their extended family) they automatically presume that the home is unsafe for the child. This is unfortunate because the homes that some social workers view as “dangerous” are actually exactly the kind of environments that would help reinforce the child’s cultural identity, which is the main goal of the ICWA.

Mrs. Rosenbaum also stressed that there are a lot more ICWA violations than people are aware of. Many times the ICWA is overlooked because those involved in cases do not realize that there is a conflict, or because they do not want to spend extra time dealing with the requirements under the ICWA. Mrs. Rosenbaum suggests that all lawyers ask their clients upfront whether or not the ICWA could potentially apply. By asking in the beginning, this could clear up any ICWA issues early on so that it does not become a problem later on after a child has been already placed or at another inconvenient time. For more information on the ICWA, Mrs. Rosenbaum suggests additional research, such as “A Practical Guide to the ICWA,” which is available for free online at http://www.narf.org/icwa/.

Although this is just a brief overview of one event on the ICWA and in no way covers all aspects and requirements under the act, I was glad that I attended because it was an opportunity to see how one lawyer has built her career on a unique specialization. I suspect that very few lawyers can claim that they are experts on the ICWA, and as Mrs. Rosenbaum mentioned, this is a growing field that could use knowledgeable attorneys who are passionate on the subject. Such expertise is especially needed in cities such as New York City, where there is a large presence of Native American children.

25 U.S.C. § 1901 is available at Cornell University Law School’s Legal Information Institute website at: http://www.law.cornell.edu/uscode/usc_sup_01_25_10_21.html)

For additional information on the ICWA, visit: http://www.childwelfare.gov/systemwide/courts/icwa.cfm