Indian Child Welfare Act Research Paper
Indian Child Welfare Act
Jessica McIntyre
University of North Dakota
SWK442 Social Policy
Kim Becker, LCSW
November 9, 2014
Introduction
Historically, Native American tribes have struggled to keep their unique culture identities. This is largely due to the actions made by the federal and state governments as a result of ethnocentrism and indifference. In order to maintain cultural identity, generational traditions must continue from parents to their children and their children’s children. It is the very essence of how culture lives on in families and generations (Basic, 2004). From the time of the 1800’s, the Boarding School Movement, backed by the Federal Government, began the attempted cultural annihilation of the Native …show more content…
American (Indian) peoples. Indian children have been disadvantaged in child custody proceedings from the earliest beginnings of a common law system in the United States. “In the late 1960s and 1970s, between twenty-five and thirty-five percent of all Indian children nationwide were separated from their families and living in an adoptive family, foster care or an institution. Approximately eighty-five percent of these Indian children were placed with non-Indian families" (Wahl, 2000, pg. 118). “The placement of these children in non-Indian households threatened to "deprive tribes of the most basic necessity for their survival- a next generation" (Watts, 1989). In response to this threat, Congress passed the Indian Child Welfare Act of 1978 (ICWA), which allowed tribal governments some power in the intervention of the removal of Indian children. The purpose of this paper is to explore the history of the problem that propelled the federal government to create ICWA and define ICWA in the form of a policy analysis.
History of the Indian Child Welfare Act: Historical Problems
The historical problem that led to the implementation of the Indian Child Welfare Act began hundreds of years before the act was brought forth. As early as the mid 1600’s Native American families were being torn apart as European explorers kidnapped them back to Europe to be put on display. Many Native American families suffered at the hands of the newly formed federal government as part of the government policy of “exile or extermination” (Ross, 2006). In the 1800’s, the Board of Indian Commissioners decided that in order to deal with the “Indian problem”, they must separate the children from their tribes. With the backing of main government officials, Native American children were taken far away from their families to boarding schools with the goal for them to become “civilized” like the white men. Many of the Indian children were forcibly removed from their homes. When parents would not willingly send their children away, federal government employees would engage in “kid catching”, forcibly taking them to distant schools (Halverson 2002). Some Native families let their children go as it was the only available way for their children to obtain an education. If any of the family resisted, they were often killed. These ethnocentric thought processes continued as the children were shipped to different parts of the country, many to Catholic boarding schools in the belief that the Native people could be assimilated into “white ways”. A historian stated:
Convinced of the superiority of the Christian civilization they enjoyed, they saw no need to inquire about positive values in the Indian culture, nor to ask the Indians what they would like. With an ethnocentrism of frightening intensity, they resolved to do away with Indianness and to preserve only the manhood of the individual Indian. There would be no more Indian problem because there would be no Indians. (Prucha, 1973, pg. 57) In 1879, Captain Richard Henry Pratt, the founder of the Carlisle Indian Industrial School in Pennsylvania, read a paper in Denver at the 19th annual Conference of Charities and Correction. It began: "A great general has said that the only good Indian is a dead one, and that high sanction of his destruction has been an enormous factor in promoting Indian massacres. In a sense, I agree with the sentiment, but only in this: that all the Indian there is in the race should be dead. Kill the Indian in him, and save the man.…"(Lalire, 2007, pg. 24). In 1880, it had become illegal for Indian children to use their Native language. The children in the boarding schools were beaten if they tried to use their Native tongue. Physical and sexual abuse were common occurrences at the boarding schools. Often the children would be sent back to their homes, broken and abused and unable to speak or understand their Native tongue (Bear, 2008).
From 1879 to 1918, around 12,000 American Indian children attended the Carlisle Indian Industrial School, and only 8% graduated, while 20 % ran away and close to 200 students died there (Lalire, 2007). Finally, in the 1920s, the federal government commissioned an investigation into the outcome of government policies toward American Indians, including boarding schools. The report that followed in 1928, The Problem of Indian Administration (also called the Meriam Report after Lewis Meriam, who supervised the study), found that children at federal boarding schools were malnourished, overworked, harshly punished and poorly educated (Bear, 2008).
The children who did return to their homes arrived confused and severely psychological damaged from the intense physical, sexual, and cultural abuse they suffered at the boarding schools. The most telling evidence occurred when they grew up to be parents themselves. They had often internalized a negative self-image and were insecure in their roles as parents (Kunesh, 1996). These depriving factors pushed through generations of families and poverty continued to be an issue. Ironically, the devastating levels of poverty and dependence resulting from the government’s oppressive economic, social, and cultural policies became the very grounds to remove Native American children from their homes (Ross, 2006).
In 1958, the Bureau of Indian Affairs and the Child Welfare league of America (CWLA) established the Indian Adoption Project (IAP). The IAP provided adoptive placements for American Indian children whose parents were said to be unable to care for them. The IAP also emphasized transracial placements (Mannes, 1995). A 1969 survey conducted concluded that across 16 states with high Native populations, 25% to 35% of all Indian children had been separated from their families and placed in non-Indian foster or adoptive homes (Goldsmith, 2002). As our nation progressed through matters of civil rights and liberties of its own people, it eventually began to recognize the unfair practices and treatment of Native American peoples, including Native children. Finally, in 1974, four years before the Indian Child Welfare Act’s implementation, Congress began to assess the impact of government assimilation policies that resulted in the “wholesale removal or Indian children from their homes,…the most tragic aspect of Indian life today”. The oversight resulted in additional findings from the hearings including the fact that: “The adoption rate of Indian children was eight times that of non-Indian children. Approximately 90 percent of the Indian placements were in non-Indian homes” (Monguia, 2004, Ross, 2006, pg. 105). The study also showed that many of the judges and state social workers lacked the basic knowledge of Native American culture, were prejudicial, and primarily removed the children from their homes simply because they were Indians and poor. One fourth of all reservation Native children were removed by state welfare agencies and most were placed in non-Indian homes. Chief Calvin Isaac of the Mississippi Band of Choctaw Indians stated:
“Many of the individuals who decide the fate of our children are at best ignorant of our cultural values, and at worst contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit the Indian child” (Chief Calvin Isaac, quoted in Metteer, 1998, pg. 424)
Psychological and sociological studies have shown that upon discovery of their ancestry, American Indian children raised in non-Indian homes have often suffered from a variety of adjustment disorders attributed to feelings of alienation from their heritage (Limb, 2008). In addition to the effects on the children, the removal also effects the parents and remaining children. Because of the high rates of removal, many parents came to expect the removal of their children, which caused poor parental behavior and fear of emotional attachments (Wunder, 1996). Because of these findings, in 1978, Congress enacted the Indian Child Welfare Act (ICWA).
Policy Description Although discussion concerning ICWA began in 1974, the bill was not introduced until April 1, 1977.
The bill was then reported by the committee November 3, 1977, and passed the Senate on November 4, 1977. The vote was not recorded, in either the House or the Senate, so no record of the individual’s votes was ever made. On October 14, 1978 the bill passed the House with changes and the Senate agreed to those changes the same day. The bill was then signed into law by President Jimmy Carter on November 8, 1978. The Indian Child Welfare act was sponsored by South Dakota Democratic Senator James Abourek, who was a strong advocate for the passing of the bill. The Indian Child Welfare Act became the law numbered Pub L. 95-608. ("Bill Summary & Status 95th Congress (1977 - 1978) S.1214", …show more content…
2014)
The stated purpose of the Indian Child Welfare Act was “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families”(Pevare, 2002). The declaration made by Congress regarding the Indian Child Welfare Act was as follows:
The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian Children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs (Ross, 2006, pg. 105).
Specifically U.S. Code, Title 25, Chapter 21, § 1901 states the following:
Recognizing the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people, the Congress finds—(1) that clause 3, section 8, article I of the United States Constitution provides that “The Congress shall have power to regulate commerce with Indian tribes” and, through this and other constitutional authority, Congress has plenary power over Indian affairs; (2) 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; (3) 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; (4) 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; and (5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families (Pub. L. 95–608, 1987).
ICWA required specific procedures to be followed by the state courts in handling Indian child custody matters. ICWA limited the state’s ability to remove Indian children from their families, by giving the tribal courts primary jurisdiction in most Indian custody cases. ICWA created a dual jurisdiction system that favors the tribe. When the child lives on the reservation, state courts have no jurisdiction to determine the child’s custody. When the child lives off the reservation, there is dual jurisdiction, however, because the parent may request the jurisdiction be handed over to the tribal courts, this is usually the results in the tribal courts handling of the cases, except for limited circumstances (Pevar, 2002).
The procedures and rights of the Indian Child Welfare Act included a list of provisions. The first provision was the establishment of minimum Federal standards for the removal of Indian children from their families. Prior to this policy, the removal of Indian children was done without any standard of proof in removal cases. ICWA also set a standard of proof for terminating Indian parents’ rights that required the highest level of proof in courts: beyond a reasonable doubt. Additionally, ICWA created exclusive Tribal jurisdiction over every Indian child custody proceedings when requested by the parent, Tribe, or Indian custodian. Finally, ICWA required State and Federal courts to give full faith credit to Tribal court decrees and provided funds to help improve child welfare services to Indian children and families. Specifically, ICWA included funds from Title IV-B, which gave funds for child welfare services with specific qualifying measures, including a 5 year plan. Preference to Indian family environments in adoptive or foster care placement was included in ICWA. Another fundamental part of ICWA is that when a state places a child in an adoption, the preferred placement must be with members of the child’s extended family, other members of the same tribe, or with other Indian families. ICWA also required Indian children to be placed in foster or adoptive homes that reflect Indian culture (childwelfare.gov, 2014).
Policy Analysis
Since the passage of ICWA, most states have acted responsibly, recognizing the importance of preserving the cultural heritage and integrity of the American Indians by following the procedures, and affording the rights required by ICWA (Pevar, 2002). However, there is still extensive evidence of generational damage caused by the prior actions of the federal government that remains to be repaired. Although the establishment of ICWA is a step in the right direction, there are shortcomings that needed to be addressed within the policy.
There are many issues with the Indian Child Welfare Act. First off, many non-Indian social workers have not educated themselves on the practices and cultural behavior of Indian families and therefore, may judge them harshly based on non-Indian middle class standards. There is evidence that state caseworkers have tended to remove Indian children to non-Indian homes, without first providing family services. State courts have suffered from poor training, cultural bias, and ignorance when they are in charge of deciding Indian child custody disputes. In many cases, state judges also defer to the opinions and information provided by the social worker and shift the proof of parental competency to the parents. Advocates for ICWA state that the abusive actions of the social workers would be lessened if more judges were themselves knowledgeable of Indian life (Wunder, 1996).
An additional issue is that ICWA is limited in where it applies in the cases of home interventions by social workers.
The act only applies to four specific custody cases proceedings, which are a foster care placement, a pre-adoptive placement, an adoption or a termination of parental rights. All of these categories, the main element is the loss of custody of the child. ICWA therefore fails to include many important cases, which are therefore handled by the state courts. Some examples of those cases include custody of Indian children in the case of a divorce, the state’s ability to intervene in homes as preventative measure, and the power of states to move or institutionalize Native children on the grounds of juvenile delinquency. It only applies to the direct removal of custody of Native children. Therefore a child becomes subject to ICWA only after removal from the home. Besides life-threatening conditions, effective social welfare agencies are in charge of support services for weeks, months, or even years before the removal of the child is unavoidable. ICWA does not require that there be formal participation in case planning by tribal or urban Indian social welfare agencies (Wunder,
1996).
Another issue involves the definition of “Indian child”. The act is limited to any unmarried person under the age of eighteen who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. However, in the case of Indians who have married non-Indian peoples, the blood quantum made not allow the enrollment in a tribe, depending on the tribal constitutions. This definition also excludes children of terminated tribes, which are tribes not recognized by the United States (Wunder, 1996).
There is also a loophole in ICWA that allows for the removal of Indian children from Indian homes in “emergency” situations. This part of the Act allows the state agency to determine removal at their own discretion, without notifying the tribe and may last until the state agency determines that the removal is no longer necessary. Another issue is the definition of “parent or Indian custodian”, who are entitled to be given notice of proceedings. A non-Indian can be a parent through birth, but not adoption. This can lead to serious and unfortunate consequences if a birth parent dies and leaves behind an adoptive parent (Wunder, 1996).
There has however, been an increase in reporting requirements in regards to ICWA. In order to receive funds from Title IV-B, which was allocated to provide states with federal support for a wide range of child welfare services, federal law require states to submit a 5-year Child and Family Services Plan (CFSP) (Limb, 2008).
On March 25, 1999, the Administration for Children and Families ACF issued a new set of program instructions that created new ICWA reporting requirements for CFSPs submitted for FY 2000–FY 2004. The program instruction detailed the following ‘‘specific measures’’ contained within 42 U.S.C. § 622(b) (11) by asserting:
The state must provide a description, developed in consultation with Indian tribes in the State, of the specific measures to be taken by the State to comply with the Indian Child Welfare Act. These measures must, at a minimum, provide for the identification of Indian children, notification of such to the relevant Tribe, and for giving preference to Indian caregivers when determining out-of-home or permanent placements for Indian children, provided that the Indian caregivers meet all relevant child protection standards (Limb, 2008, pg. 102).
Although these reporting requirements are in effect, there is still a lack of compliance that happens when initially removing Indian children from homes. Although amendments to the Indian Child Welfare Act have been introduced to Congress, they have not passed.
Conclusion
Overall, the Indian Child Welfare Act has provided some relief to Native American communities in stopping the complete removal of Indian children without the involvement of tribal courts, if applicable. It does, however, have many loopholes and specific rules that omit important members of the Native American community. There is still a lack of cultural competency that occurs with the state social service agencies across the nation. While ICWA is a good start, more tribal input should be required in cases involving Indian children. The historical damaged caused by the Boarding School Movement continues in Native American families even today. Cultural damage and poverty caused by the federal government and the widespread removal of Native American children is still an ongoing issues. The Indian Child Welfare Act, while a step in the right direction, falls short in any effort to repair the damage already done to Native American communities by the past actions of the Federal Government.
References
Basic, C. (2004). Overview of the Indian Child Welfare Act of 1978. Journal of Contemporary Legal Issues, 14(1), 117-128.
Bear, C. (2008, March 12). American Indian Boarding Schools Haunt Many : NPR. Retrieved from http://www.npr.org/templates/story/story.php?storyId=16516865
Bill Summary & Status 95th Congress (1977 - 1978) S.1214. (n.d.). Retrieved November 10, 2014, from http://thomas.loc.gov/cgi-bin/bdquery/z?d095:s1214:
Child Welfare Information Gateway Survey Administration - Issue. (n.d.). Retrieved October 20, 2014, from https://www.childwelfare.gov/systemwide/laws_policies/federal/index.cfm?event=federalLegislation.viewLegis&id=3
Goldsmith, Donna J. (2002) In the Best Interests of an Indian Child: The Indian Child Welfare Act. 53 Juv. & Fam. Ct. J. 18
Halverson, K., Puig, M., & Byers, S. (2002). Culture loss: American Indian family disruption, urbanization and the Indian child welfare ACT. Child Welfare, 81(2), 319-336.
Kunesh, Patrice H. (1996). Transcending frontiers: Indian child welfare in the United States. Boston College Third World Law Journal, (1), 17-34.
Lalire, Gregory. (2007). Carlisle Indian School transformed children: 'Kill the Indian, Save the Man '.(INDIAN LIFE). Wild West, (3), 24.
Limb, G. (2008). An Examination of the Indian Child Welfare Act Section of State Title IV-B Child and Family Services Plans. Child and Adolescent Social Work Journal, (2), 99-110.
Mannes, M. (1995). Factors and events leading to the passage of the Indian Child Welfare Act. Child Welfare, 74(1), 264-282.
Monguia, Angela M. (2004). Mississippi Band of Choctaw Indians v. Holyfield. The Journal of Contemporary Legal Issues,(1), 297-303.
Pevar, S. (2002). The Indian Child Welfare Act. In The rights of Indians and tribes: The authoritative ACLU guide to Indian and tribal rights (3rd ed., pp. 333-352). Carbondale: Southern Illinois University Press.
Prucha, F. (1978). Americanizing the American Indians: Writings by the "Friends of the Indian," 1880-1900. Lincoln: University of Nebraska Press.
Pub. L. 95–608, § 1,Nov. 8, 1987, 92 Stat. 3069, provided: “That this Act [enacting this chapter] may be cited as the ‘Indian Child Welfare Act of 1978’.”
Ross, J. (2006). The Indian Child Welfare Act of 1978. In Native Americans and the criminal justice system. Boulder, Colo.: Paradigm..
Wahl, Peter K. (2000). Little power to help Brenda? A defense of the Indian Child Welfare Act and its continued implementation in Minnesota.(Children in the Law). William Mitchell Law Review, (3), 811-838.
Watts, Stan. (1989). Voluntary adoptions under the Indian Child Welfare Act of 1978: Balancing the interests of children, families, and tribes. Southern California Law Review, (1), 213-256.
Wunder, J. (1996). Indian Child Welfare. In Recent legal issues for American Indians, 1968 to the present (pp. 219-268). New York: Garland Pub.
Jessica McIntyre
University of North Dakota
SWK442 Social Policy
Kim Becker, LCSW
November 9, 2014
Introduction
Historically, Native American tribes have struggled to keep their unique culture identities. This is largely due to the actions made by the federal and state governments as a result of ethnocentrism and indifference. In order to maintain cultural identity, generational traditions must continue from parents to their children and their children’s children. It is the very essence of how culture lives on in families and generations (Basic, 2004). From the time of the 1800’s, the Boarding School Movement, backed by the Federal Government, began the attempted cultural annihilation of the Native …show more content…
American (Indian) peoples. Indian children have been disadvantaged in child custody proceedings from the earliest beginnings of a common law system in the United States. “In the late 1960s and 1970s, between twenty-five and thirty-five percent of all Indian children nationwide were separated from their families and living in an adoptive family, foster care or an institution. Approximately eighty-five percent of these Indian children were placed with non-Indian families" (Wahl, 2000, pg. 118). “The placement of these children in non-Indian households threatened to "deprive tribes of the most basic necessity for their survival- a next generation" (Watts, 1989). In response to this threat, Congress passed the Indian Child Welfare Act of 1978 (ICWA), which allowed tribal governments some power in the intervention of the removal of Indian children. The purpose of this paper is to explore the history of the problem that propelled the federal government to create ICWA and define ICWA in the form of a policy analysis.
History of the Indian Child Welfare Act: Historical Problems
The historical problem that led to the implementation of the Indian Child Welfare Act began hundreds of years before the act was brought forth. As early as the mid 1600’s Native American families were being torn apart as European explorers kidnapped them back to Europe to be put on display. Many Native American families suffered at the hands of the newly formed federal government as part of the government policy of “exile or extermination” (Ross, 2006). In the 1800’s, the Board of Indian Commissioners decided that in order to deal with the “Indian problem”, they must separate the children from their tribes. With the backing of main government officials, Native American children were taken far away from their families to boarding schools with the goal for them to become “civilized” like the white men. Many of the Indian children were forcibly removed from their homes. When parents would not willingly send their children away, federal government employees would engage in “kid catching”, forcibly taking them to distant schools (Halverson 2002). Some Native families let their children go as it was the only available way for their children to obtain an education. If any of the family resisted, they were often killed. These ethnocentric thought processes continued as the children were shipped to different parts of the country, many to Catholic boarding schools in the belief that the Native people could be assimilated into “white ways”. A historian stated:
Convinced of the superiority of the Christian civilization they enjoyed, they saw no need to inquire about positive values in the Indian culture, nor to ask the Indians what they would like. With an ethnocentrism of frightening intensity, they resolved to do away with Indianness and to preserve only the manhood of the individual Indian. There would be no more Indian problem because there would be no Indians. (Prucha, 1973, pg. 57) In 1879, Captain Richard Henry Pratt, the founder of the Carlisle Indian Industrial School in Pennsylvania, read a paper in Denver at the 19th annual Conference of Charities and Correction. It began: "A great general has said that the only good Indian is a dead one, and that high sanction of his destruction has been an enormous factor in promoting Indian massacres. In a sense, I agree with the sentiment, but only in this: that all the Indian there is in the race should be dead. Kill the Indian in him, and save the man.…"(Lalire, 2007, pg. 24). In 1880, it had become illegal for Indian children to use their Native language. The children in the boarding schools were beaten if they tried to use their Native tongue. Physical and sexual abuse were common occurrences at the boarding schools. Often the children would be sent back to their homes, broken and abused and unable to speak or understand their Native tongue (Bear, 2008).
From 1879 to 1918, around 12,000 American Indian children attended the Carlisle Indian Industrial School, and only 8% graduated, while 20 % ran away and close to 200 students died there (Lalire, 2007). Finally, in the 1920s, the federal government commissioned an investigation into the outcome of government policies toward American Indians, including boarding schools. The report that followed in 1928, The Problem of Indian Administration (also called the Meriam Report after Lewis Meriam, who supervised the study), found that children at federal boarding schools were malnourished, overworked, harshly punished and poorly educated (Bear, 2008).
The children who did return to their homes arrived confused and severely psychological damaged from the intense physical, sexual, and cultural abuse they suffered at the boarding schools. The most telling evidence occurred when they grew up to be parents themselves. They had often internalized a negative self-image and were insecure in their roles as parents (Kunesh, 1996). These depriving factors pushed through generations of families and poverty continued to be an issue. Ironically, the devastating levels of poverty and dependence resulting from the government’s oppressive economic, social, and cultural policies became the very grounds to remove Native American children from their homes (Ross, 2006).
In 1958, the Bureau of Indian Affairs and the Child Welfare league of America (CWLA) established the Indian Adoption Project (IAP). The IAP provided adoptive placements for American Indian children whose parents were said to be unable to care for them. The IAP also emphasized transracial placements (Mannes, 1995). A 1969 survey conducted concluded that across 16 states with high Native populations, 25% to 35% of all Indian children had been separated from their families and placed in non-Indian foster or adoptive homes (Goldsmith, 2002). As our nation progressed through matters of civil rights and liberties of its own people, it eventually began to recognize the unfair practices and treatment of Native American peoples, including Native children. Finally, in 1974, four years before the Indian Child Welfare Act’s implementation, Congress began to assess the impact of government assimilation policies that resulted in the “wholesale removal or Indian children from their homes,…the most tragic aspect of Indian life today”. The oversight resulted in additional findings from the hearings including the fact that: “The adoption rate of Indian children was eight times that of non-Indian children. Approximately 90 percent of the Indian placements were in non-Indian homes” (Monguia, 2004, Ross, 2006, pg. 105). The study also showed that many of the judges and state social workers lacked the basic knowledge of Native American culture, were prejudicial, and primarily removed the children from their homes simply because they were Indians and poor. One fourth of all reservation Native children were removed by state welfare agencies and most were placed in non-Indian homes. Chief Calvin Isaac of the Mississippi Band of Choctaw Indians stated:
“Many of the individuals who decide the fate of our children are at best ignorant of our cultural values, and at worst contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit the Indian child” (Chief Calvin Isaac, quoted in Metteer, 1998, pg. 424)
Psychological and sociological studies have shown that upon discovery of their ancestry, American Indian children raised in non-Indian homes have often suffered from a variety of adjustment disorders attributed to feelings of alienation from their heritage (Limb, 2008). In addition to the effects on the children, the removal also effects the parents and remaining children. Because of the high rates of removal, many parents came to expect the removal of their children, which caused poor parental behavior and fear of emotional attachments (Wunder, 1996). Because of these findings, in 1978, Congress enacted the Indian Child Welfare Act (ICWA).
Policy Description Although discussion concerning ICWA began in 1974, the bill was not introduced until April 1, 1977.
The bill was then reported by the committee November 3, 1977, and passed the Senate on November 4, 1977. The vote was not recorded, in either the House or the Senate, so no record of the individual’s votes was ever made. On October 14, 1978 the bill passed the House with changes and the Senate agreed to those changes the same day. The bill was then signed into law by President Jimmy Carter on November 8, 1978. The Indian Child Welfare act was sponsored by South Dakota Democratic Senator James Abourek, who was a strong advocate for the passing of the bill. The Indian Child Welfare Act became the law numbered Pub L. 95-608. ("Bill Summary & Status 95th Congress (1977 - 1978) S.1214", …show more content…
2014)
The stated purpose of the Indian Child Welfare Act was “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families”(Pevare, 2002). The declaration made by Congress regarding the Indian Child Welfare Act was as follows:
The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian Children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs (Ross, 2006, pg. 105).
Specifically U.S. Code, Title 25, Chapter 21, § 1901 states the following:
Recognizing the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people, the Congress finds—(1) that clause 3, section 8, article I of the United States Constitution provides that “The Congress shall have power to regulate commerce with Indian tribes” and, through this and other constitutional authority, Congress has plenary power over Indian affairs; (2) 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; (3) 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; (4) 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; and (5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families (Pub. L. 95–608, 1987).
ICWA required specific procedures to be followed by the state courts in handling Indian child custody matters. ICWA limited the state’s ability to remove Indian children from their families, by giving the tribal courts primary jurisdiction in most Indian custody cases. ICWA created a dual jurisdiction system that favors the tribe. When the child lives on the reservation, state courts have no jurisdiction to determine the child’s custody. When the child lives off the reservation, there is dual jurisdiction, however, because the parent may request the jurisdiction be handed over to the tribal courts, this is usually the results in the tribal courts handling of the cases, except for limited circumstances (Pevar, 2002).
The procedures and rights of the Indian Child Welfare Act included a list of provisions. The first provision was the establishment of minimum Federal standards for the removal of Indian children from their families. Prior to this policy, the removal of Indian children was done without any standard of proof in removal cases. ICWA also set a standard of proof for terminating Indian parents’ rights that required the highest level of proof in courts: beyond a reasonable doubt. Additionally, ICWA created exclusive Tribal jurisdiction over every Indian child custody proceedings when requested by the parent, Tribe, or Indian custodian. Finally, ICWA required State and Federal courts to give full faith credit to Tribal court decrees and provided funds to help improve child welfare services to Indian children and families. Specifically, ICWA included funds from Title IV-B, which gave funds for child welfare services with specific qualifying measures, including a 5 year plan. Preference to Indian family environments in adoptive or foster care placement was included in ICWA. Another fundamental part of ICWA is that when a state places a child in an adoption, the preferred placement must be with members of the child’s extended family, other members of the same tribe, or with other Indian families. ICWA also required Indian children to be placed in foster or adoptive homes that reflect Indian culture (childwelfare.gov, 2014).
Policy Analysis
Since the passage of ICWA, most states have acted responsibly, recognizing the importance of preserving the cultural heritage and integrity of the American Indians by following the procedures, and affording the rights required by ICWA (Pevar, 2002). However, there is still extensive evidence of generational damage caused by the prior actions of the federal government that remains to be repaired. Although the establishment of ICWA is a step in the right direction, there are shortcomings that needed to be addressed within the policy.
There are many issues with the Indian Child Welfare Act. First off, many non-Indian social workers have not educated themselves on the practices and cultural behavior of Indian families and therefore, may judge them harshly based on non-Indian middle class standards. There is evidence that state caseworkers have tended to remove Indian children to non-Indian homes, without first providing family services. State courts have suffered from poor training, cultural bias, and ignorance when they are in charge of deciding Indian child custody disputes. In many cases, state judges also defer to the opinions and information provided by the social worker and shift the proof of parental competency to the parents. Advocates for ICWA state that the abusive actions of the social workers would be lessened if more judges were themselves knowledgeable of Indian life (Wunder, 1996).
An additional issue is that ICWA is limited in where it applies in the cases of home interventions by social workers.
The act only applies to four specific custody cases proceedings, which are a foster care placement, a pre-adoptive placement, an adoption or a termination of parental rights. All of these categories, the main element is the loss of custody of the child. ICWA therefore fails to include many important cases, which are therefore handled by the state courts. Some examples of those cases include custody of Indian children in the case of a divorce, the state’s ability to intervene in homes as preventative measure, and the power of states to move or institutionalize Native children on the grounds of juvenile delinquency. It only applies to the direct removal of custody of Native children. Therefore a child becomes subject to ICWA only after removal from the home. Besides life-threatening conditions, effective social welfare agencies are in charge of support services for weeks, months, or even years before the removal of the child is unavoidable. ICWA does not require that there be formal participation in case planning by tribal or urban Indian social welfare agencies (Wunder,
1996).
Another issue involves the definition of “Indian child”. The act is limited to any unmarried person under the age of eighteen who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. However, in the case of Indians who have married non-Indian peoples, the blood quantum made not allow the enrollment in a tribe, depending on the tribal constitutions. This definition also excludes children of terminated tribes, which are tribes not recognized by the United States (Wunder, 1996).
There is also a loophole in ICWA that allows for the removal of Indian children from Indian homes in “emergency” situations. This part of the Act allows the state agency to determine removal at their own discretion, without notifying the tribe and may last until the state agency determines that the removal is no longer necessary. Another issue is the definition of “parent or Indian custodian”, who are entitled to be given notice of proceedings. A non-Indian can be a parent through birth, but not adoption. This can lead to serious and unfortunate consequences if a birth parent dies and leaves behind an adoptive parent (Wunder, 1996).
There has however, been an increase in reporting requirements in regards to ICWA. In order to receive funds from Title IV-B, which was allocated to provide states with federal support for a wide range of child welfare services, federal law require states to submit a 5-year Child and Family Services Plan (CFSP) (Limb, 2008).
On March 25, 1999, the Administration for Children and Families ACF issued a new set of program instructions that created new ICWA reporting requirements for CFSPs submitted for FY 2000–FY 2004. The program instruction detailed the following ‘‘specific measures’’ contained within 42 U.S.C. § 622(b) (11) by asserting:
The state must provide a description, developed in consultation with Indian tribes in the State, of the specific measures to be taken by the State to comply with the Indian Child Welfare Act. These measures must, at a minimum, provide for the identification of Indian children, notification of such to the relevant Tribe, and for giving preference to Indian caregivers when determining out-of-home or permanent placements for Indian children, provided that the Indian caregivers meet all relevant child protection standards (Limb, 2008, pg. 102).
Although these reporting requirements are in effect, there is still a lack of compliance that happens when initially removing Indian children from homes. Although amendments to the Indian Child Welfare Act have been introduced to Congress, they have not passed.
Conclusion
Overall, the Indian Child Welfare Act has provided some relief to Native American communities in stopping the complete removal of Indian children without the involvement of tribal courts, if applicable. It does, however, have many loopholes and specific rules that omit important members of the Native American community. There is still a lack of cultural competency that occurs with the state social service agencies across the nation. While ICWA is a good start, more tribal input should be required in cases involving Indian children. The historical damaged caused by the Boarding School Movement continues in Native American families even today. Cultural damage and poverty caused by the federal government and the widespread removal of Native American children is still an ongoing issues. The Indian Child Welfare Act, while a step in the right direction, falls short in any effort to repair the damage already done to Native American communities by the past actions of the Federal Government.
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