Sharing Our Stories of Survival: Native Women Surviving Violence (54 page)

Can you hear my abuser laugh when you,
the police, arrest me for fighting back?
and he gets nothing, maybe 24 hours in jail,
this is how the system sets itself up to fail.

Listen!

Listen as my abuser laughs on the inside
Listen and understand
develop a protocol and a guide
strengthen your police force
stand on the victim’s side

Take your time,
observe the surroundings
think before you decide
who began the hitting and the pounding.

Can you hear your own selfishness when you,
the tribal government and the state government,
refuse to work hand in hand?
We are talking about my life, and my pain
not your land.
How can we end the violence when what each of you seek
Power
is the very thing that feeds the abuse and makes sure certain people become the
weak?

Listen and put your differences aside
call community meetings,
join forces, cross deputize.
Create a jurisdiction that doesn’t thrive on boundaries or lines,
One that doesn’t ignore the “End Domestic Violence” signs.

States, uphold tribal decisions
make punishing the criminal the ultimate mission.
Tribes, don’t get lost in your pride,
when one of your own is an abuser
don’t create laws that help them hide.

Tribes and states, sit down together when making your laws
This illuminates unforeseen flaws.

If the state is closer, tribes,
allow them to intervene.
Time wasted could be the difference between
life and death to a victim,
do you hear what I mean?
See that each entity has a voice.
Create a way for victims to have a choice

Can you hear my child’s cries
when you, the Children’s Services,
judge my parenting skills
by my two black eyes?
Instead of taking my child away
and making me be the one to pay
create an environment where it is safe for my child to play
Stop the abuser from getting his way.

Tribes, here is your chance, step up and be a role model for the state,
teach them good traditional values and how to appreciate women
before it’s too late.

Can you, all who are listening, hear my voice
the victim’s voice, at all?
The sound of my abuser’s voice has silenced me
It has deafened you,
The sound of my abusers voice has hidden, my voice, in stories told of history
in interpretations and practices of religion.
and it has deafened you.

Listen!

Hear me, ask me, include me the victim in all the decisions
of my life, of my abuse.

Kimberly Mullican Querdibitty

Chapter 18

The Indian Child Welfare Act and Violence Against Women

JAMES G. WHITE AND SARAH MICHÈLE MARTIN

F
or many victims of domestic violence, fear of losing custody of their children may hinder their efforts to assert their legal rights. In situations where children are in the victim’s home, batterers may threaten to report the mother to child protection services for alleged abuse of her children. If the children are members of the abuser’s tribe, he may try to use the Indian Child Welfare Act (ICWA) to intimidate and manipulate his partner in circumstances where the law has no applicability. Many times, an abuser will incorrectly threaten that ICWA will give him priority in a custody dispute between the two of them. ICWA never applies in cases of custody disputes between two parents. However, in situations where the act does apply (such as removal of children due to abuse or neglect), it may sometimes work against the victim, particularly if those assisting her do not understand the act. It is therefore important that advocates working with victims of domestic violence gain a working knowledge of the purposes and applicability of the Indian Child Welfare Act.
¹
A thorough understanding of the Indian Child Welfare Act must begin with its history.

Historically, American Indians have struggled to maintain their cultural identity and traditional ways. Throughout the United States, American Indian children have been removed from their families by federal, state, and private agencies in numbers that far exceed those of non-Indian children. In the 1950s and 1960s, the Indian Adoption Project placed hundreds of Native American children with white parents, the first national effort to place an entire child population transracially and transculturally.
²

In Minnesota, for example, an average of one of every four Indian children younger than age one was removed from his or her Indian home and adopted by a non-Indian couple. Many of these children were taken from their homes simply because a paternalistic state system failed to recognize traditional Indian culture and expected Indian families to conform to non-Indian ways.
³

In California in the 1970s, there were 2.7 times as many Indian children in foster care as non-Indian children. The adoption rate for California’s Indian children was 8.4 times greater than that of its non-Indian children and 6.0 times greater than that of any other minority. Of California’s adopted American Indian children, 92.5 percent had been placed with non-Indian families.
⁴

In Arizona, home to twenty-one federally recognized tribes, there were three times as many Indian children in foster care as non-Indian children. Government statistics for 1973—1976 reveal that one of every ninety-eight Indian children was in foster care in contrast to one of every 264 non-Indian children. Of these foster children, one of every fifty-three Indian children was adopted in contrast to one of every 220 non-Indian children. This represented, by proportion, four times as many Indian children in adoptive homes as non-Indian children.
⁵

These statistics reveal that the American Indian family was being separated at a rate greater than any other culture in the United States. Most of these children were not being given the opportunity to grow up with a sense of their heritage. Congress was presented with studies “showing recurring developmental problems encountered during adolescence by Indian children raised in a white environment.”
⁶
These concerns are reflected in the congressional findings set forth in the act:

[T]here is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or eligible for membership in an Indian tribe; (4) that an alarmingly high percentage of Indian families are broken up by the removal, often
unwarranted
, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and (5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.
⁷

What Are the Purposes of the Indian Child Welfare Act?

In order to properly address a victim’s concerns regarding the act, it is important to always keep in mind the public policies that form the basis of the law. The primary purposes of the Indian Child Welfare Act are set forth in its “congressional declaration of policy,” which states:

The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.
⁸

The act is primarily concerned with preserving the continued existence and integrity of Indian tribes by preventing the unwarranted removal of Indian children from their families by nontribal public and private agencies.
⁹
It is based upon the fundamental assumption that it is in the Indian child’s best interest that its relationship to its tribe be protected.
¹⁰
As the U.S. Supreme Court noted in the seminal case
Mississippi Band of Choctaw Indians v. Holyfield,
the main effect of the Indian Child Welfare Act is to curtail state authority.
¹¹
ICWA has no applicability to custody proceedings in tribal courts.

Advocates working with victims of domestic violence must be able to distinguish between circumstances in which the act applies and those in which it does not. In state proceedings where the act does apply, the protection of the Indian child’s relationship to his or her tribe can have a major impact upon custody determinations. Under such circumstances, the mother’s advocate can assist her by working with tribal advocates and social workers to ensure that the abused parent has support and can safely exercise visitation, free from threats and manipulation of the abuser. Moreover, advocates can help an abused mother in providing her children with opportunities to connect with healthy tribal members and develop positive relationships with the tribe.

When Does the Indian Child Welfare Act Apply?

The Indian Child Welfare Act applies to state “child custody proceedings” involving an “Indian child,” as those terms are defined in the act. The term “Indian child” is defined by the act as “any unmarried person who is under the age of eighteen and is either (a) a member of an Indian tribe or (b) eligible
¹²
for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” It should be noted that “enrollment” is not necessary to a determination of tribal membership under the act.
¹³
As the court stated in
In re Jeffrey
A.
,

“Determination of tribal membership or eligibility for membership is made exclusively by the tribe.” (Rule 1439(g).) “[O]ne of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child.” (
In re Desiree F.
(2000) 83 Cal.App.4th 460, 470, 99 Cal,Rptr.2d 688.) Enrollment is not determinative of membership in a tribe. (Rule 1439(g)(2); Guidelines at p. 67586.) “The Indian status of the child need not be certain to invoke the notice requirement. Because the question of membership rests with each Indian tribe, when the juvenile court knows or has reason to believe the child may be an Indian child, notice must be given to the particular tribe in question or the Secretary.” (
In re Desiree F.,
supra, 83 Cal.App.4th at p. 471, 99 CaLRptr.2d 688.) Furthermore, the ICWA and any federal or state statutes or regulations implementing the ICWA “shall be liberally construed in favor of a result that is consistent with the [ ] preferences” expressed in the ICWA. (Guidelines at p. 67586.)
¹⁴

Most courts have held that a child’s actual enrollment in a tribe is controlling regardless of the child’s eligibility for enrollment in another tribe.
¹⁵
Once a child who is eligible for enrollment in two tribes is enrolled in one of them, a parent from the second tribe cannot change the child’s enrollment in order to gain jurisdiction.
¹⁶
If a child is enrolled in one tribe, eligibility for enrollment in a second tribe does not give the tribal court of the second tribe jurisdiction under the ICWA.
¹⁷
If the child is a member of more than one tribe or is unenrolled but eligible for membership in more than one tribe, the act defines the child’s tribe as “the Indian tribe with which the Indian child has the more significant contacts.”
¹⁸
Jurisdiction is based upon the child’s tribal affiliation, not on the parent’s tribal membership.
¹⁹
The “Indian tribe” must be any Indian tribe, band, nation, or other organized group or community of Indians recognized by the federal government as being eligible for the services provided to Indians by the Secretary of the Interior because of their status as Indians.
²⁰