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Archived Info

Data

 

Indian Child Welfare Act ("ICWA")

U.S. Code Title 25, Chapter 21

CDSS ACL 89-26

Enrique O appelate decision

SB 678 (2005-2006 Legislative Session) pending

 

Links to various sites helpful for ICWA compliance

http://www.parks.ca.gov?page_id=23788
http://boxer.senate.gov/nah/tribe_listing.cfm
http://www.kstrom.net/isk/maps/ca/sacramento.htm#San%20Manuel%20Band%20of%20Mission%20Indians
http://www.kstrom.net/isk/maps/ca/california.html
http://accessgenealogy.com/native/california/catribes.htm
http://500nations.com/California_Tribes.asp
http://www.bauunistitute.com/Native/California.html.

e-mail response regarding ICWA applicability to Probation cases from CDSS date 6-23-06

Regarding your issue of application of ICWA in delinquency cases relative to the Enrique O case and the Standing Order in Sacramento County, the California Rule of Court is still in effect and requires that ICWA be applied to delinquency cases if the ward is at risk of entering foster care or in foster care. The Enrique O case as well as the Standing Order rely on the language in ICWA that states that any “placement based upon an act which, if committed by an adult, would be deemed a crime…” would not come under the requirements of ICWA. The current position on ICWA application in delinquency cases is that if a ward is going to be placed in a foster care setting – foster home or group home – then ICWA will apply. Some of the issues/questions that have arisen have to do with the timing of when a probation officer needs to apply ICWA, most specifically when to notice and how to deal with the often conflicting time lines between CA statutes regarding detention and jurisdiction hearings and the timelines included in ICWA. The Judicial Council Administrative Office of the Courts is aware of these issues and has proposed amendments to the Rule of Court regarding application of ICWA and delinquency. You can go to their web site to see the recommended amendments. The amendment to when probation would need to do noticing and apply ICWA is prior to the disposition hearing if the recommendation is going to be placement in foster care.

We have heard from some county probation departments that they are agreeing with the appellate court decision and the Standing Order and not applying ICWA. Other counties have informed us they believe that providing the protections to Indian children afforded under ICWA is the right thing to do and comply with the act. The decision is one that has to be made by each probation department. Without statutory language that requires application of ICWA to delinquency cases, these different interpretations will most likely continue.

I hope this provides some clarification – not as clear as I bet you would have liked. Don’t hesitate to contact me if you have questions or need additional information.

Anne Smith, ICWA Specialist
California Department of Social Services
744 P Street, M.S. 11-86 Sacramento, CA 95814
(916) 651-6031
anne.smith@dss.ca.gov