The Indian Child Welfare Act and the States
Andrea Wilkins
April 2004
Child Welfare Issues and Indian children
Over the years, a number of federal policies impacting Native Americans have had a devastating effect on the preservation of the Indian family. For example, the policy of forcing Indian children away from their families and into federal boarding schools, with the goal of assimilating them into mainstream American society, had the direct effect of severing family and community ties. The assimilation and termination policies of the 20th century broke up reservation communities and forced Native families away from the reservations into urban centers, isolating them from their community and extended families, who often serve as a vital source of social support. And too often state officials, failing to understand the importance of cultural beliefs and the value of the extended family, have advocated for the removal of Indian children from their homes.
Based on nationwide studies conducted between 1969 and 1974, 25 percent to 35 percent of Indian children were removed from their homes and placed in non-Indian foster or adoptive homes by state courts and welfare agencies. The alarming rate of out-of-home placement of Indian children with non-Indian families came to be viewed as a form of cultural genocide.
The Indian Child Welfare Act
In response to this trend, Congress passed the Indian Child Welfare Act (ICWA) in 1978. ICWA is designed to protect the best interests of Indian children and promote the stability and security of Indian tribes and Native families. ICWA grants jurisdiction to the tribe in child custody matters involving Indian children residing on reservations. In addition, the state court must transfer these cases to tribal court upon the request of the tribe, parent or Indian custodian, except in cases where the parent objects or there is good cause for keeping the matter in state court.
ICWA establishes a minimum federal standard for state removal of a child from their home and guidelines for placement in foster or adoptive homes. In order to meet this standard, the state must produce evidence illustrating active efforts have been made to prevent the breakup of the family. If these efforts are unsuccessful, out-of-home placement is possible if a court finds that the child is likely to suffer serious emotional or physical harm if they remain in the home.
If out-of-home placement is necessary, ICWA creates a preference system that is designed to keep Indian children in an Indian family whenever possible. This preference system applies to both foster and adoptive homes and is intended to preserve Native American communities and culture and respect tribal sovereignty.
Enforcement Problems in the States
The goals of ICWA cannot be fulfilled if it is not implemented in state proceedings involving Indian children. Today, lack of ICWA enforcement is a problem throughout the country. Too often state officials are uninformed about the Act or refuse to apply it. This results in Indian children being removed from their homes and placed in non-Indian foster or adoptive homes, despite the contrary intent of the Act. Lack of state enforcement can compromise the best interests of children and their families, which in the end, is a problem for the state as well as the tribe.
A study of nine North Dakota counties with the highest population of Indian children in foster care turned up mixed results concerning ICWA enforcement. For example, the study revealed that there is a high level of county compliance in determining if a child is a member of a tribe or eligible for membership and over half the case records indicated that active efforts were made to prevent out-of-home placement. The study found that compliance is mixed regarding notice given to tribes, parents and Indian custodians about the placement of Indian children, however. In addition, over half the foster care case records indicate that ICWA preferences were not followed in placement decisions.
A study of ICWA compliance in Arizona turned up mixed results as well. While Arizona provides ICWA training to caseworkers at the beginning of their employment, on-going training occurs less often. State efforts to maintain regular contact with the child's tribe appear to be consistent, but state and tribal official report the timeframe required by the state court does not allow enough time for state and tribal officials to collaborate. State and tribal officials report that in many cases, transferring the case to tribal court would be preferable, but tribes often lack the resources to meet the needs of the affected parties. Finally, the study found that Arizona's attempt to comply with the preference system established by ICWA for out-of-home placement is good, although no agreement exists between the state and tribes defining the meaning of "active efforts" to prevent the breakup of the family in the first place. The undefined nature of this requirement leaves caseworkers without clear guidelines for developing case plans to assist these families.
State Activity
While it is not necessary for states to enact their own Indian child welfare act, if they do not, they rely solely on the federal Act. The provisions of the federal Act are somewhat general and this can lead to problems concerning state enforcement. Some states have chosen to enact their own Indian child welfare laws or develop policies that clarify requirements of the federal Act and specify what state action is necessary for compliance.
For example, Iowa SF 354 was enacted during the 2003 legislative session. The state legislature adopted this bill in order to clarify state policies and procedures regarding implementation of ICWA. The law specifies that state policy requires full cooperation with Indian tribes and tribal citizens to ensure the intent and provisions of ICWA are enforced. In addition, the law requires notice to the tribe and family at every stage of a child welfare proceeding to help parties understand and participate in the legal process.
Similarly, the Colorado legislature passed HB 1064, which created an Indian child welfare law for Colorado and amended relevant sections of the Colorado Children's Code to ensure compliance with the federal Act, during the 2002 legislative session. The legislature recognized that, in order to achieve the goals of the federal Act, it is necessary for the state to determine whether children who are the subject of child welfare proceedings in the state court system are Indian children. If so, the state must ensure that timely and appropriate notice is given to the child's family and tribe. In addition, the state has formed an Indian Child Welfare Act Team, which is comprised of officials from around the state who monitor efforts made in relation to ICWA.
Finally, Arizona does not have legislation that establishes a state Indian child welfare law, but does have policies in place that require child welfare caseworkers to determine if the child has any Indian heritage within five days of a case being opened. This policy is designed to identify all ICWA-eligible children, ensure the proper application of the federal Act, and ensure that the child's family and tribe has adequate notice of the pending proceeding. Arizona also has established a tribal/state workgroup designed to address ICWA-related issues. The group is comprised of state and tribal officials from around the state.
States wishing to emphasize compliance with the federal Act or to establish clear guidelines for compliance with ICWA requirements may want to consider adopting legislation similar to what has been done in Iowa or Colorado. Clear guidelines make it possible for caseworkers to establish plans that conform to ICWA standards, ensure that the intent of the federal Act is carried out and hopefully, will result in better service for Native families.
Selected References
Jones, B.J., et. al., "Indian Child Welfare Act: A Pilot Study of Compliance in North Dakota." Portland, OR: National Indian Child Welfare Association, December 2000.
Brown, Eddie F., et. al., "The Indian Child Welfare Act: An Examination of State Compliance in Arizona." Portland, OR: National Indian Child Welfare Association, December, 2002.
For More Information:
Contact Sia Davis of NCSL's State-Tribal Relations Project at 303-856-1378 or State-Tribal Relations Program.
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