Navajo Nation Wins Appeal in Indian Child Welfare Act Case #ICWA

The Arizona Court of Appeals decided the juvenile court did not meet the requirements of the act. by Emma Gibson

Navajo Code Talker Memorial at Window Rock, Arizona.

Photo: Ron Cogswell/Flickr (CC BY 2.0)

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The Arizona Court of Appeals ordered a new hearing Thursday over the guardianship of a 6-year-old child who is subject to the Indian Child Welfare Act.
The Navajo Nation appealed the case, The Navajo Nation v. Department of Child Safety et al., in October 2018 after the juvenile court failed to hear the testimony of a qualified expert witness as required by the ICWA in the child's guardianship case.

The child, R.Y., falls under the act because his mother is a member of the Navajo Nation.
Tamara Shanker, the attorney who represented the Navajo Nation, said the act is an effort to rebuild indigenous culture after centuries of the removal of indigenous children from their families.

When an indigenous parent cannot care for his or her child, the ICWA prioritizes the placement of the child in the custody of a relative or someone from the same tribal nation.
Shanker said that since the juvenile court awarded permanent guardianship without the testimony of an expert witness, it opened the door for future courts to disregard other aspects of the act.
"A Diné individual is as different from a Pascua Yaqui, as an Italian is from a Dane," Shanker said. "Just because they may all just be European doesn't mean that they're the same individual and have the same child rearing practices."
She said cultural experts are necessary to accurately assess an adult's ability to care for a child by his or her cultural standards.
The act allows for three types of qualified experts to testify in its cases. One type of expert is a fellow tribal member who is a specialist in the culture's childrearing practices. The person could also be someone who provides child and family services to tribal members and is an expert on the tribe's familial organization. The court will also hear testimonies from a specialist with extensive experience and knowledge on a certain topic pertaining to the case.
The expert or experts testify as to whether the parents or an indigenous relative could raise the child without causing severe emotional or physical harm.
"We needed to have this decision, because to not get this would have set a very dangerous precedent. If you start chipping away at critical requirements under the ICWA or any law, it's like, 'If we can chip away that requirement, we can chip away this one next time,'" said Shanker.
She said that since the juvenile court did not follow all of the act's requirements, R.Y.'s custody was legally unstable. Someone could appeal the ruling and possibly remove him from his guardian's care. She said this was not the Navajo Nation's goal in pursuing the appeal.
Shaker said she hopes the new hearing solidifies the boy's custody and reinforces that even permanent guardianship cases must follow all aspects of the Indian Child Welfare Act.