LAKE COUNTY, Calif. — A Lake County tribe has given a sizable donation to a first-of-its kind effort to address the inadequate and underfunded legal services that tribes face in court cases that involve the Indian Child Welfare Act.
The Habematolel Pomo of Upper Lake has donated $100,000 to the California Tribal Families Coalition to help fund the launch of the coalition’s Legal Council of Tribes, which organizers said is a groundbreaking legal services project aimed at providing the state’s tribes comprehensive legal and social welfare services.
Specifically, the coalition’s efforts will focus on compliance with the Indian Child Welfare Act, or ICWA, a 1978 statute passed by Congress in response to Native American children being removed from their homes at higher rates than any other group, said California Tribal Families Coalition Executive Director Delia Sharpe.
Legal Counsel for Tribes is a newly developed project of the California Tribal Families Coalition to address the inequity in the courtroom, where tribes are unrepresented, leaving the promises of ICWA unmet.
The coalition is aiming to recruit the best Native American legal talent to ensure that no tribe walks into a court without the best representation the Legal Council of Tribes has to offer, as well as to build a better legal system that respects tribal sovereignty in complicated welfare cases that all too often result in violations of federal Indian law.
Sharpe said they want to have Native American lawyers or lawyers of other backgrounds with a high degree of knowledge in federal ICWA and child welfare, who understand tribal sovereignty.
“Indian child welfare is a very unique area of law,” said Habematolel Tribal Chair Sherry Treppa. “It is sadly not well represented.”
Treppa said she’s seen such issues impact Habematolel’s members, with some court cases involving children being adjudicated in ways the tribe didn’t prefer.
She said ICWA also continues to be challenged, pointing to a Fifth Circuit Court decision in the Brackeen case earlier this year in which the state of Texas challenged the statute’s constitutionality.
ICWA gives tribes the legal right to be parties to cases involving their children. However, in many cases the tribes have not been represented by attorneys, which creates significant equity issues, Sharpe said.
Thus the endeavor to recruit young attorneys out of college and start training them to be dedicated to this mission, Treppa said.
Sharpe said they are trying to craft a program so that in every case involving a tribal member child, there would be an attorney with the knowledge necessary to help them.
Sharpe said Habematolel is a member of the California Tribal Families Coalition. “They have been a leader in this work from the very beginning.”
She said Habematolel’s contribution will be a cornerstone for the launch of the rest of the program. “Their support and leadership is imperative to the success of this work.”
Addressing the ‘typical experience’
Treppa said that in counties not familiar with working with tribes, the typical experience has been children getting lost in the system and going into foster care rather than with a family or tribal member.
Tribes with resources have the ability to hire special attorneys that are well versed in ICWA and working in California specifically. However, Treppa noted that a lot of tribal members don’t have the resources to be able to address those situations on their own.
In those cases, had the tribe been involved and notified, they could have found placement within the tribal community with family or a representative the tribe prepared for foster care, Treppa said.
She said the situation in California has been improving because of the state’s position.
However, disparities continue. In California, more than 90% of Native American children available for adoption are still placed in nonnative homes, Sharpe said.
Treppa said she believes Lake County “is getting there” and improving thanks to the positive intergovernmental relationships her tribe has with local government agencies.
Sharpe said the idea for the Legal Council of Tribes started with the California Indian Child Welfare Act Compliance Task Force, convened at the invitation of then-Attorney General Kamala Harris.
That task force created a report documenting compliance concerns with ICWA that was submitted to Harris’ successor, Xavier Becerra, in 2017.
The report included 20 targeted recommendations from the tribal perspective that, if done properly, would increase ICWA compliance across the state, Sharpe said.
She said the No. 1 issue is inequity in the courts; that includes not having the needed legal counsel.
Sharpe said that based on recent data collected by the state of California there are 1,257 children to whom ICWA applies for placement through California courts as of April 1, 2021.
However, while the state of California keeps data on child welfare cases, Sharpe said they have readily acknowledged it is not entirely accurate.
As a result, the exact number of children considered Indian under ICWA isn’t known, Sharpe said.
A phased approach
Sharpe said the new Legal Council of Tribes program is being rolled out in phases, with small targeted goals and regions.
When talking to tribes, the coalition is engaging in a phased up scaling, with targeted goals and regions. “We want to be very, very thoughtful and sustainable in our overall approach,” Sharpe said.
Phase one finalizes the development of the coalition’s internal structure, partnerships with law schools, holding teaching workshops and seminars, starting the law clerk program, recruiting attorneys and doing their own briefing.
That’s largely done, with recruitment continuing. “We have taken on our first case,” she said.
Sharpe said they are now hiring attorneys for the program, working with law schools that have programs specifically dedicated to federal Indian law. They’re also creating a law clerk program to get the law students experience before taking and passing the bar.
They have already hired three fully licensed lawyers, with another law student who had yet to sit for the bar beginning as an advocate in August with the goal of later coming on as the first dedicated legal counsel for tribes.
Sharpe said the coalition believes that within three years they will have a lawyer available for every case in California involving Indian children.
By that point, they also will have the data necessary to back up final reports and recommendations for the overall project and development of a law school curriculum so students will come out of law school with targeted knowledge.
Phase two is launching in three counties with the highest impact, number of tribes and cases, where the coalition also has relationships with the judiciary and can access the entirety of the county’s child welfare system.
The first region set for rollout includes Inyo and Mono counties. Riverside County will be included in phase two, Sharpe said.
From there, they will be looking to add new regions. They’re already looking at Humboldt, where Sharpe said the native population is well under 10% for children, but yet they make up 30 to 50% of the children in the foster care system.
Other counties with high proportionality are Del Norte, Inyo and Lake counties, and are expected to be added in future phases, Sharpe said.
Phase three will overlap with phase two, and will include assessments on the program’s effectiveness and the collaborations, with listening sessions to take place in pilot counties and statewide to determine what counties come. Sharpe said they also have created evaluation tools about which counties will come next.
Phase four will include launching an appellate project to ensure tribes are represented there as well. In phase five, they will publish data and develop law school curriculum, Sharpe said.
“This model doesn’t exist anywhere in the country,” Sharpe said.
“Over time one would hope that as a result of this federal statute that we would see a remediation of this issue,” she said.
To keep the program going, Sharpe said the goal is to pair tribal contributions with public funding.
On Sept. 24, Native American Day, Gov. Gavin Newsom signed AB 873, written by Assemblymember James Ramos, the first and only California Native American serving in the California Legislature.
Ramos’ office said the bill ensures that tribal foster youth have tribal representation during court proceedings involving possible removal from their homes. It also requires the California Department of Social Services to assist tribes in implementing agreements regarding care and custody of Indian children and jurisdiction over Indian child custody proceedings. Additionally, the bill clarifies the path to federal and state funding to ensure tribes have the resources needed to aid native youth and families during legal child custody hearings.
“It’s essential that children and tribes have the representation and tools to protect these kids as decisions are made about the most important factor in a child’s life — who will care for them as loving and responsible parents,” Ramos said. “Removing children from their Native American parents and their tribes is traumatic. It evokes the inhumane practices of the removal of children to force assimilation at boarding schools. This is a positive and healing step forward for Native families.”
Sharpe said that bill is expected to channel some funding into the Legal Council of Tribes.
“We believe that is ongoing funding that will allow the program to be sustainable over time,” Sharpe said.
Treppa said her tribe wants to support these types of positive changes and developments throughout California. “We are always going to be an advocate for positive change,” she said, adding, “We’re kind of helping to plant the seed.”
She said she expects it will reach its full potential. “They will be busy full time,” she said, noting there are not enough resources.
With tribes historically lacking resources, “This kind of legal resource is vital,” Treppa said.
Added Sharpe, “We are excited to bring together truly exceptional native law graduates to provide a place for them to launch their careers in Indian law.”
While the Habematolel Pomo has made the initial investment to help get the program off the ground, California Tribal Families Coalition is still seeking more donations to reach its full potential.
Information on becoming involved is available at the group’s website.
Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it.. Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.