MSU?Law Professor Kathryn Fort argues Indian Child Welfare Act (ICWA) case before the Colorado Supreme Court

Michigan State University College of Law Professor Kathryn Fort is a leading expert on the Indian Child Welfare Act (ICWA).

Photo courtesy of MSU

MSU?Law

When the Logan County (Colorado) Department of Human Services removed two infant twin girls from the custody of their mother, the mother told the department that their father might have Chickasaw heritage. The department sent notice to the Chickasaw Nation, which responded that the children were eligible for citizenship and sent the necessary tribal citizenship forms to the department.

The Chickasaw Nation never got those forms back.

To all appearances, the agency simply ignored the notice from the Chickasaw Nation, and the Nation received no communication from the State. The State filed to terminate the mother’s parental rights and only at that point did Logan County disclose to the juvenile court that the children were eligible for enrollment in the Chickasaw Nation.

That’s where Michigan State University College of Law’s Indian Law Clinic entered the case (People in Interest of K.C. and L.C.).

Academic Specialist and Indian Law Clinic Director, Kathryn Fort, one of the nation’s leading experts on the Indian Child Welfare Act (ICWA), worked extensively with the Chickasaw Nation on this complicated case. Instituted in 1978 in response to a national epidemic of the removal of Native children from their families and tribes, ICWA sets federal requirements for state child custody proceedings involving a Native child “to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children…” (25 U.S. C. 1902). While widely regarded as a successful tool in promoting the wellbeing of both children and tribes, ICWA compliance is patchy and varies from state to state.

In the case of People in Interest of K.C. and L.C., Professor Fort argued before the Colorado Supreme Court that the Logan County Department of Human Services had violated ICWA and failed in its responsibility to act in the best interests of the twins.

“The argument is that yes, technically they’re not Indian children under the definition of ICWA at the time they were removed – but that, but for the inaction of the agency, they would have been tribal citizens and received ICWA protections,” said Professor Fort. “Our argument is that under Colorado’s understanding of best interests, agencies have an ongoing responsibility to make sure that the children in their care who are eligible for membership are enrolled.”

“Basically, what we were arguing on behalf of the tribe is that it is always in a child’s best interest to be a tribal citizen.”

While specific resources can vary from tribe to tribe, tribal enrollment confers concrete, material benefits upon members: lifelong no-cost healthcare, access to supplemental childhood resources, possibly family tribal housing, and often college and vocational scholarships or tuition waivers.

“There are multiple Indian centers in Denver,” said Professor Fort. “Colorado has an Office of Indian Education and those kids can get special services in the public education system. There are grants for clothing and books. There are writing competitions. Someday, there will be job opportunities. These are lifelong benefits.”

While acknowledging that skeptical courts are more likely to be influenced by a show of material benefits, Professor Fort pointed out that enrollment also offers powerful cultural advantages to tribal enrollees, particularly for children who have entered the foster care system, as K.C. and L.C. have. Today, they are four years old, and have lived in foster care for most of their lives.

Removal from a family setting constitutes an adverse childhood experience that can have negative lifelong consequences. But resiliency factors – such as psychological belonging, being around loving family and adult caretakers, religion or spiritual practices, and physical security – can mitigate the impact of those adverse experiences.

“If they are part of a tribe, they’ll always know where they’re from, where their family is,” said Professor Fort. “They’ll always know that they were wanted.”

Like most child welfare cases, ICWA casework involves sad and complicated family situations: in addition to the ICWA violations, K.C. and L.C. experienced neglect, family removal, and uncertain paternity. The case was further complicated by unclear state guidelines regarding the timing of notifying the juvenile court of a potential tribal claim on the children.

“The guardian ad litem argued that it was a total procedural mess,” said Professor Fort, “but I didn’t think we’d get there on just a procedural issue – we needed to have an affirmative argument that the agency has an obligation to act. We’re asking agencies to be better than they are.”

(It should be noted the tribal paperwork is hardly burdensome; Professor Fort believes that she pointed out three times in her oral argument the form is three pages long.)

The Colorado Court of Appeals’ solution in this case? A so-called “best interests hearing,” where parents and agency representatives appear before the juvenile courts in order to decide whether enrollment in the tribe is in the best interests of the children. In her oral argument before the Colorado Supreme Court, Professor Fort argued against such a hearing.

“First of all, this hearing is just created by the Court of Appeals,” said Professor Fort. “And it’s never not in the child’s best interest to just do the paperwork and enroll the child.”

Professor Fort observed that the Chickasaw Nation itself will not be represented at the hearing.

“These hearings, they’re an anathema to tribal nations,” said Professor Fort. “It goes right back to the time when the state agencies and actors decided a child’s relationship to her tribe.”

There are potential legislative fixes to this situation (states with their own ICWA laws have less ambiguous standards), but in the case of K.C. and L.C., Professor Fort and her colleagues at the Chickasaw Nation will wait. While she’s not confident that this case will result in a commitment from Colorado agencies to fill out tribal enrollment forms, she’s more optimistic that a decision will do away with the best interests hearing.

She admits that attempting to persuade judges that tribal citizenship benefits children can be disheartening. “You’re often facing anti-tribal sentiment and racism head-on – and no one wants to admit it,” she said.

“We see this a lot: there may be investment and lip-service to ICWA. But when it comes down to decisions about an individual child, then it becomes ‘well, you don’t mean it in this case.’”