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Recently, I was thrown back into the world of child guardianships with my appointment as the Civil Trial Judge to the Cheyenne andArapaho Trial Court. The last few years, I was more involved with litigating on behalf of tribes instead of representing Indian families or children. One of my prior cases, however, involved representing a tribe in national litigation concerning the federal Indian Child Welfare Act (“ICWA”) in Missouri. For those not in the know, ICWA is national legislation designed to keep Indian children within their communities, at least as far as possible. I won’t get into the details of that case, except to note it began the same as many others: The social worker hired by the tribe to facilitate assistance with its Indian children was forced to attend many hearings alone. But we cannot fault any one tribe too much; it is a common practice across the country as attorneys are not cheap. However, I have witnessed that while most of those hearings occur without issue, social workers are not trained to recognize when there are legal procedural violations, much less, how to preserve objections for appeal.
These tribes are playing Russian roulette with both National law and their own children. First, the way that ICWA is likely to be litigated is that the interest groups opposed to the law will wait until a social worker acting alone messes up the proceedings below. However, given the recent Brackeen decision—the Supreme Court affirmed the validity of ICWA—I hope the National debate about ICWA will settle down for a while. But the risk to tribal children does not go away, even if the national spotlight has moved away from the law.
On the ground, Indian children just deserve better. By that meant, in many—perhaps most—proceedings involving children, the correct decision is obvious. For example, footage of physical child abuse is going to get your child taken into custody regardless of the particular legal differences between jurisdictions. Based on my experience, I would estimate at least half of these court proceedings involving children are predestined to a certain outcome. Yet, for those other fifty percent of cases where in court litigation will made a difference, an attorney’s presence is key.
More precisely, there is a 30% swing in case success rates when an attorney attends court with the social workers as compared to those without legal support. When attorneys are involved, success rates jump from 55% to 85%—a difference that directly impacts the lives of Indian children and their families (NASW, 2021). This 30% swing underscores the critical need for legal representation, ensuring that every decision made respects ICWA standards and safeguards the child’s cultural ties. And these numbers do not reflect any correction for those predestined cases I mentioned before. If you remove the one-half of cases where the outcome was inevitable, the30% becomes a 60% swing in odds of legal success.
For Indian children, ICWA is more than a legal safeguard—it’s a lifeline preserving their connection to family and culture. Historically, Indian children were disproportionately removed from their homes and placed in non-Native settings, often severing their ties to their heritage. In Minnesota alone, from 1971-1972, 13% of all Indian children, including 25% of those under age one, were placed in adoptive homes, with 90% of those placements in non-Native homes (Indian Child Welfare Act Law Center, 2023).This led Congress to pass ICWA in 1978 to halt these practices and ensure thatIndian children remain connected to their communities (Indian Child Welfare ActLaw Center, 2023).
Yet, compliance with ICWA remains inconsistent, and without legal representation, social workers are more likely to make decisions that fail to uphold these standards. Attorneys bring the legal expertise necessary to navigate these complexities, ensuring that every action taken is in line with ICWA’s mandates. The presence of an attorney not only boosts success rates but also ensures that every child’s connection to their culture and family is fiercely defended (NASW, 2021).
Avoiding Legal Pitfalls and Ethical Violations
Social workers are experts in client care, not in law. Without attorneys, they risk crossing into legal territory, such as offering legal advice or making decisions without the appropriate legal context—actions that could lead to charges of unauthorized practice of law (Social Work Today,2024). This not only jeopardizes the case but also places the social worker’s license at risk. With attorneys on their side, social workers can stay focused on their primary role, confident that their actions align with legal requirements and ethical standards (Social Work Today, 2024).
Attorneys also help reduce the risk of ethical violations, which can occur when social workers inadvertently step outside their professional boundaries. For example, social workers partnered with attorneys reported a 30% reduction in ethical violations related to legal matters (Journal of Social Work Values and Ethics, 2019). This collaboration ensures that social workers operate within their scope, protecting both the clients and themselves from potential legal fallout (Journal of Social Work Values and Ethics, 2019).
ICWA mandates that “active efforts” be made to keep Indian families together, including providing support services before considering the removal of a child (ICWA Webinar Series, Indian Affairs, 2023). Attorneys are essential in meeting this requirement, offering the legal guidance necessary to ensure that all possible measures are taken to support families. They help social workers advocate for services that are culturally appropriate and tailored to the specific needs of Indian children, strengthening the case for keeping families intact (ICWA Webinar Series, Indian Affairs, 2023).
Attorneys also reinforce the recognition of tribal sovereignty—a cornerstone of ICWA. By ensuring that tribal courts have primary jurisdiction in child welfare cases involving Indian children, attorneys help uphold the principle that these courts are best suited to make decisions that affect their members (Indian Child Welfare Act Law Center, 2023). Without legal representation, social workers may struggle to advocate effectively for the tribe’s rights in state court proceedings, which could jeopardize the child’s connection to their tribe (Indian Child Welfare Act Law Center, 2023).
The Cost of Non-Compliance
Failing to comply with ICWA can lead to severe consequences, including legal challenges, case reversals, and damage to the child’s well-being. A significant risk of non-compliance is the potential for appeals or overturned decisions, particularly if state courts fail to properly recognize a child’s Native heritage (NICWA Guide to ICWA Compliance, 2018). Attorneys play a vital role in preventing these issues by ensuring that every legal requirement is met from the outset, protecting the child’s placement and the integrity of the case (NICWA Guide to ICWA Compliance, 2018).
Beyond the legal metrics, the impact on the children themselves is profound. Indian children who maintain their connections to their tribal communities are more likely to thrive, supported by the cultural and familial ties that are integral to their identity (Indian Child Welfare Act LawCenter, 2023). Attorneys help ensure these connections are preserved, advocating not just for compliance but for the best outcomes for each child.
For tribes, hiring attorneys for ICWA cases is a strategic investment in their future. It’s not just about navigating the legal landscape;it’s about making sure that every Indian child has the opportunity to grow upconnected to their heritage, surrounded by their community. The extra 30%success rate represents more than just a number—it reflects our commitment toprotecting our children and our culture.
Taking Action: Protecting Our Future
Tribes have the power to protect their children by investing in legal representation for social workers. This isn’t merely about compliance; it’s a proactive step in safeguarding the next generation of Indian children.By hiring attorneys, tribes can ensure that every ICWA case is handled with the utmost care, expertise, and respect for cultural traditions.
Indian children deserve the extra 30%. They deserve to be raised within their tribes, to learn their traditions, and to grow up knowing who they are. Let’s make sure that every decision honors that right. Reach out today to learn how your tribe can benefit from legal representation in ICWA cases. Together, we can protect our children, our culture, and our future.
All Rise! is a team of attorneys experienced at appearing in tribal and state courts on behalf of tribal social service departments, such asIndian Child Welfare. In short, we are available to assist if your tribe is in need.
If you need legal help, elevate your representation with AllRise!
Citations:
• National Association of SocialWorkers, NASW, 2021.
• Indian Child Welfare Act Law Center,2023.
• Social Work Today, 2024.
• Journal of Social Work Values andEthics, 2019.
• ICWA Webinar Series, Indian Affairs,2023.
• National Indian Child WelfareAssociation, NICWA Guide to ICWA Compliance, 2018.
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