Recent news stories about unmarked graves of American Indian children at residential schools could lead one to believe that removing American Indian children from their homes was the horror of a by-gone era. Today in Minnesota, Indian children are eighteen times more likely overall to be removed from the home than white children, according to Sheri Riemers, Government Relations Director at the Ain Dah Yung Center (“Our Home” in Ojibwe).
The Indian Child Welfare Act (ICWA) of 1978 (25 U.S.C. §1901 et. seq.) was intended to “protect the best interests of Indian children . . . by the establishment of minimum Federal standards for the removal of Indian children from their families.” (25 USC §1902) While ICWA requires the State to meet stringent standards before an American Indian child can be removed from the home, Riemers believes that the lack of enforcement powers is partly to blame for the continued disproportionate removal of American Indian children.
Ralph Overholt, Counsel for the Leech Lake Band of Ojibwe, explained that when an ICWA case is filed, not only must the child’s parents receive notice of the hearing, but the child’s Tribe, also. As a result, ICWA hearings include not only the county attorney, each of the child’s parents with his or her own counsel, the child’s guardian ad litem (and if the child is over age 10, the child’s attorney) but also the child’s Tribe, whose role is to ensure compliance with ICWA and enforce the rights of the Tribe.
The Ain Dah Yung Center hired its first ICWA compliance monitor in 2001. Sadie Hart, the current Indian Child Welfare Compliance Monitor at the Ain Dah Young Center, reported that courts generally have better compliance when monitors are present. While compliance monitors can be viewed as threatening by the court, it is Ms. Hart’s preference to increase ICWA compliance by providing the courts with increased education and assistance.
After the National Council of Juvenile and Family Court Judges’ (NCJFCJ) overview and report on ICWA compliance by the Second Judicial District four years ago, Judge Diamond invited stakeholder groups to advise and assist the court in implementing NCJFCJ’s recommendations. One result is a dedicated ICWA Calendar that was established in 2018.
Mr. Overholt described physical changes to the courtroom for ICWA cases that are intended to create a more culturally relevant experience. The presiding judge does not sit upon the dais, but joins the parties at a large table. Ms. Hart observed that this simple culturally appropriate sign of respect can result in parents being more willing to accept the court’s recommended requirements, and therefore more likely to be reunited with their child. The ICWA Calendar also incorporates a table housing four sacred medicines—tobacco, sage, sweetgrass, and cedar—for the families’ use, and a traditional star quilt is displayed.
Today Judge Smith is the lead ICWA Calendar judge for Ramsey County. He finds it vital that anyone working on ICWA matters understand the long history of the removal of American Indian children from their homes. “Understanding a little bit of that history helps those of us giving life to the Indian Child Welfare Act the ability to appreciate and embrace the spirit of the law.” Smith values the role of the ICWA monitor. “I’m glad we have someone like Sadie [Hart]. She is at times a resource for me, and I value the input she can provide.”
With the ICWA Calendar now taking place virtually, families do not see the cultural changes in the courtroom. Still, there are benefits to virtual hearings. Mr. Overholt covers ICWA hearings involving children from the Leech Lake Band in all counties located south of St. Cloud. He can now be present at more hearings without hours of travel. Similarly, Ms. Hart observes ICWA hearings in six counties and sometimes only attended hearings in any given county once each month. Now, by attending more hearings, the judges get to know her and the resources she brings. Judge Smith notes that many American Indian families benefit from virtual hearings because they no longer need to miss an entire day’s work—often in hourly jobs with no paid time off—in order to attend a twenty-minute hearing.
Everyone I spoke with agreed that there is still room for improvement in meeting ICWA goals. The creation of the ICWA Calendar, the culturally appropriate changes to the courtroom where ICWA cases are heard, and Judge Smith’s emphasis on complying not only with the letter of ICWA but also its spirit, show that the Ramsey County District Court is taking steps in the right direction.