Policy Shards

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Policy Shards: The Indian Child Welfare Act of 1978 Introduction In 1978, the federal government implemented the Indian Child Welfare Act (ICWA). It was signed into law in an effort to keep Indian children with Indian families. Heretofore, the federal government was reluctant to engage in practices of social welfare but reversed this stance momentarily as it felt it had an obligation to ensure the survival of Indian cultures and practices after a long history of assimilation efforts. As a result, measures were taken to keep Indian children as close to traditional structures and practices as possible. Throughout the 1960’s and 70’s, unwarranted removal of Indian children from their families was widespread. Much of this was a result of the state’s lack of knowledge regarding Indian child-rearing practices. The enactment of ICWA ensured that Indian tribes would have a prominent if not dominant voice in their children’s futures. For example, tribes are given exclusive jurisdiction over their children if they are raised on the reservation. Children who do not live on the reservation are given both state and tribal jurisdiction. Furthermore, specific requirements were established regarding child welfare proceedings involving an American Indian child in state custody such as notifying the tribe of any state proceedings regarding the child well in advance of the actions. The ICWA has met with considerable debate. Most recently, the 1997 enactment of the Adoption and Safe Families Act (ASFA) has challenged tenets of ICWA since its provision that it may terminate parental rights for children who have been in foster care

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for long periods of time challenges the tribal beliefs that the relationship between parent and child may not be severed. Critics of ICWA believe that the legislation’s ideals make child safety secondary. Arguments against the legislation and attempts (and some successes) at ignoring the law led proponents to consider the IWCA as another “broken treaty” demonstrating how contentious the piece of legislation is as well as continuing to demarcate certain racial barriers that continue to exist within American society--racial barriers that many critics see as hurting children rather than helping them. But proponents of ICWA say that keeping Indian children with Indian families maintains a cultural integrity that is a valid and integral part of U.S. history and ultimately is the healthier alternative for children whose identities are not merely closely tied to their heritage but are their heritage: Does keeping history alive tamper with the lives and futures of Indian children? This is the crux of the ICWA debate. Social Problem Context Definition of Child Services The Government Accountability Office (GAO) released a report to Congressional Requesters, Tom Delay, Wally Herger and Pete Starks in April 2005. It was meant to provide assistance to states having difficulty complying with ICWA regulations in conjunction with the more recent Adoption and Safe Families Act. More specifically, the report was targeted towards the Department of Health and Human Services’ Administration for Children and Families (ACF) to whom GAO recommended “using ICWA compliance information available through its existing child welfare oversight activities to target guidance and assistance to states (GAO, 2005).” HHS disagreed. Assuredly, the safety of children is of utmost importance to both Indian and Non-

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Indian parties. However, what the two parties consider to be “child welfare” differs. Of Indian children, congress states that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe (25 U.S.C. § 1901).” HHS on the other hand takes issue with the fact that hurdles must be jumped in some circumstances in order to ensure that children find safe homes. Placing children in a family with specific demographics presents many problems not least of which is the timely placement of children-in-need. Ideological/Value Perspective When ICWA was enacted, its tenets were set forth because of the political sovereignty granted to American Indian tribes. Proponents are quick to point out that the act does not exist because of race but because children are politically affiliated with nations that reside to some extent outside of mere American politics. Herein is the issue. Not only are Indian tribes subject to federal law but they are also governed by their own tribal policies, etc. Whenever possible, the federal government enforces adherence to federal principle while taking into account the sovereignty promised to tribes after colonization. In essence, within the framework of Indian territory and communities, tribes are largely self-governing. However, the increased interaction between Indian and non-Indian communities has forced ICWA into terms that appear narrow in scope. Social changes such as increased homogenization and urbanization have seemingly rendered ICWA outdated as the number of available Indian caretakers has dwindled.

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Causal Analysis Increased homogenization and rapid social transformation in an industrial society have left tribes struggling to retain and rebuild what remains of provincial languages, traditions and values that define the cultures themselves. Of course, any culture’s survival depends on its children’s knowledge, willingness and ability to carry on its legacy. However, the nation within a nation has proven difficult for Indian tribes as the syncretism that must come from the struggle to maintain autonomy while still functioning in society-at-large instills confusion not only for the tribe itself but for the social welfare system that tries to ensure the safety and productivity of all citizens. “To Indians, removal of their children from the Indian community is cultural genocide. They say that the child is devastated by the resulting loss of cultural heritage. However, non-Indian authorities seek to promote Indian child welfare by placing needy Indian children in available foster and adoptive homes despite the ethnic or racial identity of the new caretakers. Placement of Indian children away from their families has grown while the number of available Indian foster or adoptive homes has been inadequate (Blair, 1).” While removal of children from Indian homes is a valid concern of tribes, HHS argues that there aren’t enough tribal resources to facilitate the number of children currently in foster care. Furthermore, as it is a major component of ASFA to remove children from temporary homes and place them in permanent adoptive homes as quickly as possible, the added obstacles of having to consult the tribe in matters of prevention and in matters of removal from a parent or Indian custodian and/or potential reunification of child with their parent or custodian hinders the rapidity with which the system is able to provide service.

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Gainers and Losers Non-Indian parties find it difficult to understand the adamancy of Indian tribes to keep Indian children as close to their cultural homes as possible especially in the climate of globalization when racial lines increasingly seem to be a thing of the past. This encompasses HHS and other services as well as would-be foster or adoptive parents outside the reservation who believe that good homes are the priority and not the color of a child’s skin. However, Indians might argue that this is not an issue of race, but of national unity; that, the removal of Indian children from their tribal homes without the express consent of the tribe would be ripping them from their cultural birthrights. Who gains and who loses in this case is dependent on how each party defines gain and loss. To the tribal member, losing one’s heritage would be a far greater loss than a long stay in a temporary home (also, what constitutes home to Indians and non-Indians differs dramatically as many tribes identify the entire community as one family and therefore the definition gets lost in translation from both angles). To the HHS proponent, the potential for instability is far more devastating. A general mistrust on the part of the Indian towards the state is still pervasive in many tribes making communication between social workers and tribes tenuous at best. This makes it difficult to orchestrate potential homes for needy children. Furthermore, because very often many Indian families are providing “informal kinship care” for children, it is difficult for them to provide the resources necessary to formally take on additional children. And quite simply, in many cases, there simply isn’t enough money to reimburse Indian foster families even though ICWA authorizes federal grants to tribes for providing child welfare services and the licensing of foster homes (GAO, 2005).

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From an analytical standpoint, there is gain and loss on all counts. The crosscultural negotiations that must occur in dealing with Indian child welfare cases must be frustrating for all involved because it is not just a sociological issue but one heavily based in politics as well. Judicial Context ICWA was enacted in 1978 in response to the fact that Indian children were about six times more likely to be separated from their families and placed in foster care than other children. Many of these children were placed in non-Indian homes or institutions. Congress created the legislation in order to “protect American Indian families from the unwarranted removal of their children and to give tribes a role in making child welfare decisions for children subject to the law (GAO, 2005).” Today, the basic tenets of ICWA still stand even though it often meets with limited success as factors such as demographics, available resources, etc. make it very difficult to apply a cross-the-board precedent in deciding cases involving Indian children. ICWA’s success has been especially contentious in California where it has been overlooked largely because of the confusion that continues to surround it. For example, three cases went before the state courts and each court analyzed ICWA differently which resulted in very different verdicts each time making it impossible to apply a set precedent (Thorington, 1). Yet, the difficulty should come as no surprise since congress has essentially passed into law two competing pieces of legislation that make deciding these cases no easy task. Historical Context Ultimately, it is history that provides much of the impetus for ensuring that ICWA remains in effect today. Congress states that, “Recognizing the special relationship

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between the United States and the Indian tribes and their members and the Federal responsibility to Indian people, the Congress finds…that Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources (25 U.S.C. § 1901).” In essence, the act mandated that states adhere to two efforts in particular: 1.) To provide services to the family to prevent removal of an Indian child from his or her parent or Indian custodian; 2.) To reunify an Indian child with his or her parent or Indian custodian after removal. In addition to these two active efforts, another cornerstone of the law involves early participation and consultation with the child’s tribe in all case planning decisions (NICWA, 2008). Through 1969-1974, between 25%-30% of all Indian children were removed from families placed in foster or adoptive homes and institutions. In Minnesota, it was found that Indian children faced foster care placement sixteen times more often than non-Indian children (U.S.C.C.A.N. 7531, 1978). As a result, ICWA was passed. In the Supreme Court case Mississippi Choctaw Indian Band v. Holyfield, the court ruled that the ICWA gives the tribal court exclusive jurisdiction over a case where the parent was domiciled on the reservation. Clearly, congress reneging on or amending this law would cause considerable backlash from tribes and tribal supporters. In fact, the federal government has done very little amending with respect to ICWA. With the exception of its place in law, attention given to the act by the federal government has been minimal.--this is evidenced by the confusion that continues to abound in state courts when dealing with Indian child welfare cases. The act seems to exist in a sort of stasis. Perhaps the most significant indication that ICWA is a sort of “ghost” law comes from the

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fact that many instances in which states failed to comply with ICWA standards were not held up for inspection and thus were not held accountable for direct violation of its tenets. Social Program and Policy System Goals and Objectives At its inception, ICWA was meant to curtail the unnecessary removal of Indian children from their homes. Cultural differences between Indians and non-Indians made this phenomenon rampant during the 1960’s and 1970’s. The goal of Congress and most Indian tribes is to ensure that the tribes themselves are active in decision making processes regarding their children. NICWA is a non-profit organization whose primary goal is to ensure that ICWA’s policies are adhered to by encouraging early participation and consultation with the child’s tribe in all case planning decisions. Among their goals are to provide active efforts in assisting the family, identifying a placement that fits under preference provisions, notifying the tribe and parents of custody proceedings, and working actively for tribal involvement (NICWA, 2008). Essentially, the NICWA tries to act as a liaison between state and tribal officials. Ultimately, the goal desired by most Indian tribes is the reunification of child and family and the tenets of ICWA are designed with this goal in mind. “ICWA requires states to provide active efforts to prevent the breakup of an American Indian family (GAO, 2005).” Entitlement Rules Those falling under the provisions of ICWA are children who are members of a federally recognized tribe (according to the tribes’ own blood quantum laws) or if they are eligible for tribal membership and are the biological child of a tribal member.

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A tribal court may be given sole jurisdiction regarding a child who lives on the reservation. However, children will fall under some state jurisdiction if they reside off of federally granted land. Benefits and Services A benefit to the state of allowing tribal courts to take responsibility for their children is that it lessens their case load. Communication with tribes is not only viable because it is mandated but because it does increase the amount of assistance given by parties who have a vested interest in ensuring the health and prosperity of children. Benefits to the tribe are of course keeping cultural values as well as family values intact. Additionally, a benefit of having interaction between ICWA and ASFA is that families might be given recompense for the support of foster and adoptive children. Even while current law does not allow ACF to provide Title IV-E funds directly to tribes, some states have established agreements with tribes to distribute these funds to children who meet eligibility requirements (GAO, 2005). Administrative and Service Delivery System Funding In the event that Title IV-B or Title IV-E funds are distributed to state child welfare agencies or tribes, there are three main reports that must be submitted: 1) A fiveyear child and family services plan that describes the state’s goals and objectives with regard to the needs and well being of children and families and the scope and adequacy of services available for children and families; 2) A description, developed in consultation with tribes and tribal organizations, of the specific measures taken by the state to comply with ICWA, which must be included in the state’s 5-year plan, as required by

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amendments to the Social Security Act enacted in 1994 (Pub. L. No. 103-432), and 3) An annual progress and services report (APSR) to discuss the state’s progress in meeting the goals outlined in its 5-year plan and to revise the 5-year plan goals if necessary (GAO, 2005). The Bureau of Indian Affairs (BIA) is charged with the responsibility of dispensing grants to tribes for various child welfare purposes and assisting states in recognizing the tribal affiliations of children when asked to do so. However, the agency has no oversight abilities regarding how state child welfare agencies or state courts apply the law for Indian children in state custody. Interactions with Other Services and Benefits As mentioned, the administration of child welfare services can be quite contentious as ICWA and ASFA harbor different ideologies regarding the placement of children. While ICWA wants states to focus on reunifying families, ASFA deigns to move children through the welfare system quickly. ASFA’s two major goals are: 1) to make a child’s safety the most important consideration in child welfare decisions, and 2) to compel child welfare systems to make foster care maintenance payments to cover a portion of the food, housing, and incidental expenses for all foster children whose parents meet certain federal eligibility criteria and for whom certain judicial findings have been made. Administrative efforts at carrying out the requirements set forth by ICWA have been litigious since so much confusion abounds regarding how best to adhere to its tenets as well as those of ASFA. As mentioned before, states such as California were not able to respect ICWA since the views of ASFA were upheld in lieu of the earlier act. Evaluation

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Values and Agenda The values of ICWA may be found in the history of American Indians themselves. Since Indian removal, indigenous cultures have struggled to maintain what’s left of tribal cultures and aesthetics. In an effort to perhaps rectify past judgments of the federal government toward native people, congress gave tribal governments sovereignty to act whenever possible in the best interest of their own communities. Keeping Indian children with their respective parents, relatives, or extended families within the community helps to preserve the culture for future generations. While homogenization in America cannot be dismissed, every effort must be made to keep tribal families unified. Feasibility of the Policy With the enactment of ASFA, congress made the feasibility of ICWA debatable. At the very least, the structure of ICWA should have been examined, amended and the terms more clearly delineated with respect to the later law. It is difficult for social workers and the system to mete out decisions regarding the placement of children in these circumstances which prolongs the amount of time a child’s stability must remain in flux. This policy, while certainly appropriate and feasible thirty years ago is not necessarily appropriate in its original terms today. Furthermore, societal changes have rendered the desire of tribes to remain autonomous impractical. The legitimacy of ICWA at the outset of its enactment worked due to the reluctance of tribes to assimilate, however it appears to be relatively outdated with regard to the social climate today. Indians no longer stay exclusively on the reservation decrying contact with non-Indians. There aren’t enough means on many reservations alone that may provide the necessary resources needed to make possible the retention of Indian children with Indian families when the need for

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healthy productive environments is so pervasive. Efficiency The efficiency of ICWA must certainly be called into question especially when dealing with children off the reservation. Children are often removed from households and families that they identify with and associate themselves with simply because the tribe argues that their place is with the Indian side of their families. Perhaps they may have just enough Indian blood to qualify them under the terms of ICWA. That act then becomes the preeminent force behind child placement. If a child is ¾ Mexican and ¼ Navajo and has grown up primarily identifying himself as a Mexican, does that ¼ blood quantum mean that the Navajo nation can assert their authority based on ICWA principles? Absolutely—while it is ultimately up to a judge to determine where a child will be placed based on the case-by-case specifics, the added necessity of having to do everything through both the state and tribe is frustrating for social workers and the welfare system at large since it prolongs a process that is already arduous by nature. Effectiveness One of the primary reasons for ICWA’s lack of effectiveness is a shortage of foster and adoptive Indian homes. ASFA’s standards for potential foster and adoptive parents often make it difficult for many Indian candidates to pass. Often, Indian homes aren’t large enough to support another child by ASFA standards since the act requires that no more than two children share a room and that each child has their own bed. Indian living is often communal and this aspect of their culture keeps them from being suitable candidates in fostering or adopting children who might share the same cultural aesthetics. Strengths

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ICWA works best when it involves children who reside on the reservation since tribes may be given exclusive jurisdiction over the child. They are able to license foster or adoptive parents by their own standards which allows factors such as culture preference to be included. Obviously, when Indian children identify with their heritage and a suitable Indian candidate exists to foster or adopt them, the goal of retaining cultural integrity is achieved. Limitations It has become increasingly difficult for social workers to adhere to both IWCA and ASFA policy since their mandates are often at odds. Searching for suitable Indian homes in which to place children dramatically extends the amount of time they are in the system. Of course, this inhibits ASFA’s mandate that children be moved through the process as quickly as possible. Additionally, such factors as phone consultations and drives to the reservation make the process more arduous and lengthy. Specific Recommendations Regarding Improvement of IWCA to More Adequately Meet the Needs of the Client System When a foreign-born citizen becomes a citizen of the United States, he or she is required to take an oath to uphold the policies of the state. Perhaps the same process should be applied to Indians living off the reservation. In other words, IWCA’s tenets should be amended to reflect only those children who reside on the reservation or have direct relation with family members who dwell there. Time constraints should exist regarding how long a child has lived off the reservation. If the child has lived the majority of his life outside the boundaries of Indian territory, then he or she should be subject to the policies of the state without any mandated interference by their Indian

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relatives. This isn’t to say that viable Indian candidates can’t apply or shouldn’t be looked at on the reservation, it simply gives the state complete authority to act and determine the best placement for that child without being held accountable to the Indian nation. Critics of proposed changes to ICWA would argue that to amend it would be like breaking another treaty. However, legislation passed in California and other states clearly negates the principles of ICWA and has proven that the act is already broken in its current form. Many factors have contributed to the breaking down of the thirty-year piece of legislation least of which are political factors. Economics play a huge part in the changes since many Indians must leave the reservation in order to find suitable employment. To be sure, changes to the legislation would not be cut and dry. How would Oklahoma Indians fare given the fact that there are no delineated reservation boundaries-the entire state has been given the status as “Indian territory?” In some cases, the state would still have to negotiate with tribes, but time constraints should be employed regarding how long the tribes have to come up with a viable solution. Failure to do so would place the case solely in the hands of the state. Retaining cultural integrity is certainly a valid and honorable endeavor and should be applauded. Indian heritage contributes to the rich diversity that comprises the landscape of the United States. However, it should not be retained at the high cost of keeping children in unsafe or unproductive environments. America is the land of opportunity and children above all should be given the greatest opportunity to flourish in productive and safe settings and removed from stressful situations that inhibit their sense of security. To be placed in an area of contention for lengthy periods should not be a part

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of the social welfare system regardless of the politics involved or an outdated piece of legislation.

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Bibliography Blair, Irene. Information Packet: Indian Child Welfare Act. National Resource Center for Foster Care and Permanent Planning. May 2002. www.hunter.cuny.edu/socwork/nrcfcpp Cornell University Law School, U.S. Code Collection. Title 25, Chapter 21--Indian Child Welfare. Retrieved August 2, 2008 from www.law.cornell.edu/uscode/html/uscode25/usc_sup_01_25_10_21.html GAO, (2005) Indian Child Welfare Act: Existing Information on Implementation Issues Could be Used to Target Guidance and Assistance to States. Report to Congressional Requesters. Retrieved August 2, 2008 from www.gao.gov/new.items/d05290.pdf National Indian Child Welfare Association. Website: About Page. 2 August 2008. www.nicwa.org Social Security Reform Act of 1994. H.R. 4277. Congressional Record, May 17,1994. Retrieved August 2, 2008 from www.ssa.gov/history/reports/may17house.html Thorington, Nancy. Indian Child Welfare Act Update. National Indian Justice Center, 1999.