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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 cross-

cultural 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 five-

year 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.