Enforcing the Indian Child Welfare Act

/ Blog Post

By Kace Rodwell, 2018 Equal Justice Works Fellow sponsored by DLA Piper LLP (US) and an Anonymous sponsor

Photo of Kace Rodwell
Photo of Kace Rodwell

My Fellowship project focuses on reducing the number of unrepresented Native American parents in Indian Child Welfare Act (ICWA) cases in state court, and supports tribal court efforts to place Native children with their families. Within the first six months, I’ve represented clients in ten different courts, including state district court and tribal courts, eight different counties in the state, and from eight different tribes.

I designed my project as a response to the overwhelming number of Native children being removed from their homes and placed in non-ICWA compliant placement. Despite ICWA being enacted to remedy forced removal practices, Native families are four times more likely to have children removed and placed in foster care than non-Native families. While there is a right to a court-appointed attorney under ICWA, many parents are still unable to receive access to the legal help they need to ensure the safe return of their children.

Photo of Kace Rodwell (right) assisting a tribal member with his will at Comache Nation Tribal Court. Photo courtesy of Oklahoma Indian Legal Services, Inc.

Though the ICWA provides protections necessary for families to stay together, the ICWA is often violated due to lack of experience or knowledge of this area of law. There is frequent intentional disregard for the ICWA compliance by judges, prosecutors, and state agencies. Sometimes tribes don’t receive notice that one of their children has been removed from their home, and that the tribe has a right to intervene as a party in ICWA cases. A notice is one of the major protections under ICWA that parents or Indian custodian, tribe, and, in the state of Oklahoma, the Bureau of Indian Affairs are entitled. In other instances, my identity as a Native woman has caused many people to mistake me as part of the tribe. The misidentifications have led to repeated corrections with parties, judges, and court staff that I do not speak on behalf of the tribe involved, but as the attorney for the individual parent/Indian custodian. Through my project, I’ve been able to work alongside tribes so that tribal parents or the Indian custodian can receive the services needed to remedy the basis of the child(ren)’s removal with the goal of reunification.

ICWA is not the only issue I work on at Oklahoma Indian Legal Services. In all of my cases, poverty, domestic violence, and/or substance abuse play a role. I recently helped on a case where a woman was being abused by her son’s father in the presence of her child. She called the police and was arrested for domestic violence charges that were later dropped. Her son was placed in a home where she was unable to see him for three months. She was not offered an attorney, there were no active efforts made to prevent the breakup of the family, and she did not receive a proper notice detailing her rights under ICWA. Our organization contacted the child’s tribe and got them involved in the case. Working together, we proved to the court that this mother was not a serious emotional or physical danger to the child (the burden the state must meet under the ICWA). This case was ongoing for five months prior to me representing her, but she was able to reunite with her son within a month of our organization filing motions on her behalf. The moment of pure joy on the faces of the mom and son when they were reunited is something that I will always carry with me. This case is a great reminder of why equal access to justice makes a difference.

Photo of Kace Rodwell (left) at the National Institute of Trial Advocacy (NITA) training in Boulder, CO. Photo courtesy of Oklahoma Indian Legal Services, Inc.

Oklahoma Indian Legal Services (OILS) has been phenomenal in advancing my project goals. Fortunately, I have been able to advance their mission as well! OILS is one of the few “stand-alone” Indian law programs in the nation, meaning it specializes in areas of law that impact Indian people because they are members of a federally-recognized tribe. The organization handles cases on wills, probates, land issues, and the ICWA, because each of these areas of law are governed differently just on the basis of them being tribal members.

With my project, I’m able to highlight problem areas within the law, within the court system, and within everyday practice of the ICWA. Though my project has many facets and can be complex, my Equal Justice Works Fellowship allows me to work in an area of law that I am passionate about and gives my clients a voice in court that has not been present until recently.

To learn more about Kace’s project, visit her Fellow profile.

Learn more about becoming an Equal Justice Works Fellow