ICWA Application in Delinquency Jurisdictions

The Bureau of Indian Affairs’ 1979 guidelines for ICWA states that the Indian Child Welfare Act applies to status offenses.  “Status offenses” are offenses that would not be a crime if committed by an adult. Examples of a status offense are truancy or drinking under age.  Comments in the guidelines say, “…status offenses are usually premised on the conclusion that the present custodian of the child is not providing adequate care and supervision…. For that reason status offenses are treated the same as dependency proceedings and are covered by the Act… .” (Section B.3)

See the American Bar Association’s Fact Sheet on ICWA and Advocacy for Status Offenders.

In California, state law (Welf. & Inst. Code sec 224.3) requires tribal notice under ICWA in juvenile delinquency proceeding under sec. 601 (status offenses) and under sec. 602 which are prosecutions under general criminal law, i.e. for acts committed by a juvenile that would be a crime if committed by and adult.

There is recent California case law regarding applying Indian Child Welfare Act (ICWA) mandates in delinquency jurisdiction:

The 3rd Appellate District decided In re: R.R. (2009) that WIC sec. 224.3 applies in “dual” cases – that is where the offending youth is already in foster care.

Conversely, the 4th Appellate District determined In re W.B. Jr. (2010), that WIC sec. 224.3 can not be applied in the delinquency context, except for sec. 601 status offenses, because of federal preemption.  In essence, the 4th Appellate District court found that the greater protections afforded tribes and Indian youth by state law are preempted by the Indian Child Welfare Act.  The court reasons that state law is preempted because non-status-offenses are expressly excluded in the Indian Child Welfare Act.  On May 10, 2010 this case was accepted for review by the California Supreme Court.

Call for Sacramento-area support: ICWA in delinquency case MAY 7

To All Those Concerned:

I am writing to alert any and all persons and organizations within the Sacramento Native American community of the need for support and presence of members of the Native American community at the next court date for my 15 year old client, Raymond R., an enrolled member of the Crow Creek Sioux of South Dakota.

As you may know, The Presiding Judge of the Sacramento Juvenile Court has a 27 page standing order that precludes application of the Indian Child Welfare Act in delinquency proceedings. On behalf of Raymond, our office challenged that standing order and ultimately filed a petition for writ of mandate in the 3rd District Court of Appeals. After back and forth briefing between our office and the Attorney General, the 3rd District Court of Appeals issued an alternative writ in favor of Raymond on March 20, 2009. We have received word that the Attorney General is going to decline to respond and then it will be up the 3rd to decide to issue a written opinion for which there is no time frame.

In the meantime, Raymond remains detained Juvenile Hall. He has been in custody four months and counting on a new petition that could otherwise be resolved if the proceedings were not stayed. There is no confinement time left on his original petition. I filed, and the court heard a motion to have Raymond released pending further proceedings on April 15, 2009. The court denied that motion and set a new court date for May 7, 2009 on the issue of detention, Welfare and Institutions Code section 241.1 and Probation’s recommendations regarding the new petition. The court agreed to have a foster parent through the Tribal and Economic Social Solutions Agency, Inc. assessed for possible temporary release/placement pending further proceedings. For the court to grant such release, the court will have to find, over the District Attorney’s objection, that such release and placement is in Raymond’s best interest and will not compromise safety to society. Counselors from the Sacramento Native American Health Center have been permitted to work with Raymond since his detention, but their access and cultural practices are limited and certainly does not provide the groups and ceremonies for Raymond to participate as would be available to him out of custody.

This Court implied on the record that one of the primary reasons that Raymond is in custody is because of my office, in that I asserted the ICWA, which necessitated appellate review and stayed proceedings preventing Raymond’s case from moving forward with placement in a delinquency group home or ranch camp- non of which account for his Native American heritage or placement preference under ICWA. The office position is that Raymond values his Native American culture and heritage, federal and state law has codified this significance and thus, this must be part of our advocacy for him. Accordingly, the Court should value its meaning for Raymond and the impact it has on him and the Native American community as well.

For this reason, I am asking that you do what you can to fill the Juvenile courtroom with members of the Native American community on May 7, 2009 at 8:30am to show this Court that the Native American community values Raymond and the positive impact this community has had on him and can continue to have on him should be released from custody. To date, the court continues to express their irreverence for the ICWA as a noneffectual process because the Native American community does not step up for its members. I do not believe this to be the case.

If you would like more details, please contact me directly at the number below or view the appellate history at

http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=3&doc_id=1382389&doc_no=C060573

Please feel free to send this on to those Native American organizations throughout the state who may be interested and take part in supporting Raymond on this day.

I hope to see you on May 7, 2009 in Department 91 at the B.T. Collins Juvenile Justice Center Courthouse located at:

9605 Kiefer Blvd

Sacramento, CA 95827

Randi Barrat, Assistant Public Defender

Office of the Public Defender, Juvenile Division

9605 Kiefer Blvd. Rm 302

Sacramento, CA 95827