UNDER SIEGE: THE INDIAN CHILD WELFARE ACT
To better understand the scope and breadth of wrongful removals of children, a brief review of the events leading up to the passage of the Indian Child Welfare Act of 1978 is in order, as no other ethnic group or classification has been more deeply impacted by the policies of child protection than has the Native American Indian.
As B.J. Jones, litigation director for Dakota Plains Legal Services and author of the American Bar Association legal manual The Indian Child Welfare Act Handbook explains:
A look at history reveals why Congress determined a special law was needed to protect the rights of Indian children and their parents. Before 1978, as many as 25 to 35 percent of the Indian children in certain states were removed from their homes and placed in non-Indian homes by state courts, welfare agencies, and private adoption agencies. Non-Indian judges and social workers--failing to appreciate traditional Indian child-rearing practices--perceived day-to-day life in the children's Indian homes as contrary to the children's best interests.
In Minnesota, for example, an average of one of every four Indian children younger than age one was removed from his or her Indian home and adopted by a non-Indian couple. A number of these children were taken from their homes simply because a paternalistic state system failed to recognize traditional Indian culture and expected Indian families to conform to non-Indian ways.
The Indian Child Welfare Act was intended to reduce the high percentage of wrongful removals of Indian children, often obtained by child welfare workers through fraud or duress. It was also intended to reduce the high number of illegal adoptions of Native American Indian children by primarily white adoptive families. The Act itself clearly explains the findings of Congress:
That an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.
"It was not only the high number of children being removed from their homes, but also the fact that 85 to 90 percent of them were being placed with non-Indians that caught the attention of Congress," notes B.J. Jones. "The act was intended by Congress to protect the integrity of Indian tribes and ensure their future."
Knight-Ridder News Service reporter Bonnie Weston provides this summary: "The idea was to halt devastation of Indian cultures by social workers who, misunderstanding Indian cultures, plucked thousands of children from reservations and placed them with non-Indian families."
Marc Mannes, Ph.D., of the Children's Bureau of the U.S. Department of Health and Human Services, provided a significant historical perspective as part of his presentation at the 1992 second annual Indian Child Welfare Conference: "After all, it was the anguish and anger over the placement of American Indian children with families outside of their culture, acts that came to be understood as a form of cultural genocide, that secured the passage of the ICWA."
WHAT THE ACT WAS INTENDED TO DO
The Indian Child Welfare Act clearly addresses the common practice of the improper removal of Native American Indian children through the application of fraud, duress or trickery by child welfare caseworkers and adoption agencies, providing a remedy:
Where any petitioner in an Indian child custody proceeding before a state court has improperly removed the child from custody of the parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over such petition and shall forthwith return the child to his parent or Indian custodian unless returning the child to his parent or custodian would subject the child to a substantial and immediate danger or threat of such danger.
The Indian Child Welfare Act also provides a similar remedy for the countless adoptions secured by means of child welfare and adoption workers employing fraud or duress:
After the entry of a final decree of adoption of an Indian child in any state court, the parent may withdraw consent thereto upon the grounds that consent was obtained through fraud or duress and may petition the court to vacate such decree. Upon a finding that such consent was obtained through fraud or duress, the court shall vacate such decree and return the child to the parent.
As for the question of how fraud, duress and trickery work, and continue to work in practice, the American Indian Lawyer Training Program provides this answer in its analysis of the Act: "Sometimes a person wishing to have the child removed from his Indian parent or custodian will take the child through some kind of trick or dishonesty and then bring a custody action in a state court."
The American Indian Lawyer Training Program explains this in greater detail, exploring the Congressional findings in its analysis of the section of the Act relating to adoption consent provided in open court:
The House Report that accompanied the Bill recognized that in the past many Indian parents had consented to the removal of their children without really understanding what they were doing or after being unfairly pressured to do so... This provision recognizes that many Indian parents, especially if young and unmarried, are under a great deal of emotional stress at such times and can be subjected to unfair pressures to give up the child.
THE ECONOMIC INCENTIVES
The House Report clearly indicates that many of the wrongful removals of children from their families by social workers were economically motivated:
In some instances, financial considerations contribute to the crisis. For example, agencies established to place children have an incentive to find children to place.
Indian community leaders charge that federally-subsidized foster care programs encourage some non-Indian families to start "baby farms" in order to supplement their meager farm income with foster care payments and to obtain extra hands for farmwork. The disparity between the ratio of Indian children in foster care versus the number of Indian children that are adopted seems to bear this out. For example, in Wyoming in 1969, Indians accounted for 70 percent of foster care placements but only 8 percent of adoptive placements. Foster care payments usually cease when a child is adopted.
Thousands of American Indian children were literally taken from their homes for no valid reason--other than to promote the financial interests of child-placing and adoption agencies. Many of these children were literally forced into a form of modern-day servitude. These practices continued unchecked for over forty years, and on into the late 1970s.
IS THE ACT WORKING?
Nearly two decades after the implementation of the Indian Child Welfare Act, a history of approximately 300 ICWA related cases had developed in various courts.
The ICWA seemed to be working working in one sense, yet not working in another. Removals of children from Native American parents by child protective caseworkers increased to the extent that 20 to 30 percent of Native American children were in alternative placements. But studies suggested that some tribal child welfare programs were themselves partly responsible for the increase.
According to a federally funded study of Indian Child Welfare released in 1988, the number of Indian children in placement increased by 25 percent during the first half of the decade of the 1980s. Indian children, which account for only 0.9 percent of the total child population in the United States, account for 3.1 percent of the total substitute care population, and appear to be placed in substitute care at a rate that is 3.6 times greater than the rate for non-Indian children.
The study confirmed placement prevention work as having been performed in only 41 percent of a sample of case records reviewed for American Indian children in public agency care, 37 percent of a sample of case records for children under tribal government agency care, and only 33 percent of case records reviewed for Native children in Bureau of Indian Affairs care. According to Troy R. Johnson, Conference Coordinator for the second annual Indian Child Welfare Conference:
Today . . . the widespread separation of Indian children from their homes continues. In spite of the enaction of the Indian Child Welfare Act in 1978, 20 to 30 percent of Indian children are still being placed outside of their natural tribal and family environments, primarily in non-Indian foster care and out-of-culture adoptions.
According to Marc Mannes, of the U.S. Department of Health and Human Services, this can be attributed in part to the focus on emphasizing the child at the expense of tribal and family integrity:
There is substantial evidence to argue that in the course of developing programs and services since the passage of the ICWA, policy makers and practitioners have for the most part concentrated on protecting children and Native culture. The field of Indian Child Welfare has almost exclusively emphasized creating opportunities for culturally appropriate placements, and only minimally dealt with preservation of families.
Mannes argues that federal government policies, administered through the Bureau of Indian affairs are also responsible for the increase in out-of-home placements:
Federal government policies have also contributed to this emphasis on protection and culturally appropriate placements. If one were to review discretionary funding announcements published in the Federal Register during the late 1970s and most of the 1980s, from the BIA, one will note the emphasis was placed on developing child protection and placement-related services.
He continues: "In a child welfare system where the focus is on child protection and placement, it is likely that the placements of children will increase and attempts to prevent placements will not be emphasized."
What are the consequences of placing the emphasis on the child at the expence of tribal and family integrity? Mannes concludes:
Regrettably, this emphasis on placement is contributing to yet another instance wherein American Indians and Alaskan Natives are not able to maintain families and raise children. First, there were the federal boarding schools that forced the removal of Indian children from their families in order to assimilate them into American society. Second, there were the culturally insensitive actions of state, county, and local social services that led to the widespread removal of Indian children from their families. And now, in the third instance, the focus on child protection and the placement of Indian young people in various forms of substitute care is separating children and families.
It would appear that some tribal organization have converted to an "emphasis on the child" philosophy, and have themselves hopped aboard the foster care gravy train.
Mannes comments on one of the most startling findings accounting for the increase in the number of out-of-home placements of Native American Indian children: "According to the research, it is the tribally-run Indian Child Welfare programs that seem to be responsible for the increasing rate of placements."
But the tribal organizations are not singularly responsible for the increase in out-of-home placements. Cultural insensitivity, perhaps more properly defined as bias or prejudice, also contiinues to play a significant role. Maria Tenorio, Executive Diretor of the Native American Program of Oregon Legal Services says she has encountered case workers over the years who have simply refused to recognize the Act.
She recounts the story of one family in Oklahoma who was not only willing to open up their home to five Native American children, two of whom were their grandchildren, but who had constructed a five-bedroom home to accomodate them: "The case worker refused to move them because he said, 'They didn't speak English.'"
According to Art Martinez, Ph.D., Clinical Supervisor with the Tolyabe Indian Health Project, Family Services Program, case worker bias continues to play a significant role in child placements. So, too, can biased judges play a role. Says Martinez:
Biases are operating there. Part of our job is not to get distracted by those biases. I used to be involved in a lot of cases where the social worker would tell me, "How can you work with that county? Or how can you work with that worker? Because they openly hate Indians." I've had judges tell me, "I thought we killed all the Indians."
TWO SIDES OF THE ISSUES
In a recently published decision, the 4th District Court of Appeal ruled that two siblings of Kiowa-Comanche heritage could be adopted by their foster parents despite the objections of their tribes. The decision, the first of its kind for California, dismayed Indian representatives.
The appellate court also ruled that if tribes want to intervene in custody cases, they must do so early on.
The appellate court did not initially publish its decision, which meant it applied only to the two siblings. But at the urging of John Dodd, an Orange County attorney on the winning side of the appellate case, and allies such as the national and California academies of adoption lawyers, it was published in 1995, establishing it as a statewide precedent.
"The Indian tribes take the position that they have an absolute right to decide everything about any child with a single drop of Indian blood at any time," said Dodd. "This is absurd. It ignores the best interests of the child."
Harold La Flamme, the trial attorney for the two children, wrote the court that publication would not only benefit his clients, but also "help thousands of cases currently pending in juvenile courts."
If the decision stands, says Marlene Echo Hawk, a child psychologist with Indian Health Services in New Mexico, thousands of Indian children could be damaged.
"This is a very damaging ruling," said attorney Sylvia Paoli of Tustin, who petitioned the state Supreme Court for a review. "It grants a lot more discretion to the court. It appears the ICWA, federal law, is not going to be law in California; that kids here don't have a right to know their heritage."
"This is causing the diminishment of the tribes," Paoli said. "If it is not stopped, there will be no more tribes."
INDIAN CHILD WELFARE ACT UNDER ATTACK
The Indian Child Welfare Act of 1978 did not pass without some resistance. Ron Marlene of Montana, the lone dissenting Committee member, conveyed the views of a number of officials of his state and of an organization of state welfare administrators, arguing that more hearings were needed and that the Act might mean increased and unfair costs to the states.
Nearly two decades later, the Indian Child Welfare Act was once again under attack.
H.R. 3286, introduced into the House of Representatives on April 23, 1996, proposed to amend the Indian Child Welfare Act making it easier for non-Indians to adopt Indian children without tribal consent, announced Assistant Secretary for Indian Affairs Ada E. Deer in a May 8, 1996 press release issued by the Bureau of Indian Affairs.
"I join the Administration's support for the general provisions of this bill, but as the trustee for American Indians and Alaska Natives I cannot support Title III of H.R. 3286."
"Title III of this bill, in my opinion, would in effect nullify major provisions of the Indian Child Welfare Act which were intended to preserve and maintain the cultural integrity of Indian communities and families," said Ms. Deer. "The provisions in this title set us back 30 years and destroy all the progress Indian tribes have made in protecting their children."
"If Title III were to be adopted, it would effectively erode tribal sovereignty because it allows non-Indian forums to determine whether a biological parent maintains significant social, cultural, or political affiliation with the Indian tribe. This basic determination should rest with Indian tribal courts," said Ms. Deer.
"To do otherwise strips tribal courts of their fundamental jurisdiction over this important matter and makes a mockery of Indian tribal sovereignty. Only a tribal forum can adequately determine the role that the extended Indian family fulfills on the reservation."
Deer explained, "It is very devastating for an Indian child to grow up in a non-Indian environment. An Indian child must know, feel and experience his culture. Isolated hardship stories cited by the Congress about non-Indian adoptive parents should not form the basis for an amendment to the Indian Child Welfare Act. An amendment should be considered only after proper consultation with Indian tribal governments has occurred."
THE INDIAN CHILD WELFARE ACT TODAY
The United States Government Accountability Office issued a report examining the implementation and effectiveness of the Indian Child Welfare Act in early 2005, finding that the information states provided to the federal government "varied widely in scope and content and many states did not report on the effect of their implementation efforts." The report continued, explaining that:
ICWA created important protections to prevent state child welfare agencies and courts from inappropriately separating American Indian children from their families. More than 25 years after it was enacted, however, we know very little about the effect of this law on moving American Indian children in foster care to permanent homes in a timely manner, while ensuring their safety and well-being. The scarcity of data on outcomes for children subject to the law, along with variations in how individual states, courts, social workers, and tribes interpret and implement ICWA, make it difficult to generalize about how the law is being implemented or its effect on American Indian children.
Perhaps not surprisingly, the GAO's findings varied considerably from state to state. An Arizona report the GAO examined noted that compliance with the ICWA was "not always consistent with the intent or spirit of the law from district to district, and that efforts are not made to determine the applicability of ICWA in all cases."
Similarly, a Nevada report found that "some stakeholders expressed concern that some judges in the state do not follow the provisions of ICWA," the GAO explained.
In Utah, "stakeholders expressed different opinions about the consistency with which caseworkers identified American Indian children and notified tribes when these children are in state custody." GAO also noted that the state of Montana's report indicated that according to stakeholders the child welfare agency was in need of American Indian foster homes, but did not do any specific recruiting to fill the need.
A quarter of a century of legislative and judicial efforts at reform notwithstanding, the Indian Child Welfare Act has yet to make a measurable difference in the lives of Native American children and their families.