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How to Protect Native Children—and ICWA

The Indian Child Welfare Act was passed in 1978, preceded by studies like the 1976 study by the Association of American Indian Affairs, which found that 25 to 35 percent of all Indian children were being placed in out-of-home care. Eighty-five percent of those children were being placed in non-Indian homes or institutions. In a response to the overwhelming evidence from Indian communities that the loss of their children meant the destruction of Indian culture, Congress passed the Indian Child Welfare Act of 1978. It was passed due to the disproportionate amount of Indian children placed in out of home placements, as well as finalizing adoptions away from the child’s tribe and family. ICWA has served thousands of Indian children, and has helped strengthen their families.

As always ICWA is under attack and people who want placement of Indian children are lobbying to overturn the law. Recently, the BIA promulgated new guidelines and held public hearings regarding the proposed regulations. The BIA guidelines have not been updated since 1994 and the proposed regulations are the first substantive regulations proposed since enactment of ICWA. While the guidelines provide guidance on how to implement the law, regulations proposed are the first since the enactment of ICWA. While the guidelines provide guidance on how to implement the law, regulations carry a greater force of law, which will strengthen enforcement of ICWA. The guidelines are already being used in court proceedings, and are being challenged in some state and county courts. States are asking for independent assessments on the application of good cause to oppose transfer of jurisdiction to tribes. The same critics of ICWA that assert that ICWA far exceeds its original purpose; do not understand that ICWA is the only federal law that requires a fair process that considers the unique needs of Indian families and children, and requires consideration by state and private child welfare agencies and courts.

The issue of ICWA is complex both legally and on a personal level. The same critics that assert that ICWA’s current guidelines and regulations exceed its intent are not being truthful to themselves and others. As evidence, over-representation of Indian children exist in almost every state where a federally-recognized tribe exists, especially states like Alaska. Ongoing access to Title IV-E funds, which can support tribal placements of Indian children in foster care, guardianship, and adoption, are being expanded to help tribes gain further independence from state child welfare programs.

The Heart of ICWA is my interest. How do you implement correctly, and how do you relate to a state system that often has limited commitment in assisting Indian children and families in a way that will be most effective? The most common misunderstanding of state systems is, the sense of tribalism Indian people have. The desire to have children come home has existed as long as they have been forced out of tribal environments. While ICWA only applies to state child welfare proceedings, tribes can utilize the law to bring children home but need to do it in a very assertive fashion.

Often tribal leaders are elected because of how they lead their personal lives, their business knowledge, and leadership skills. I would encourage tribal leaders to gain additional information on child welfare, both on and off the reservation. The first thing a tribal leader can do is verify whether placement rates are too high and the reasons for this with their tribal child welfare departments. The majority of Indian children that are removed should be able to go home both with state and tribal social service programs, but reunification is reliant upon the skills of the individual worker. The vast majority of child maltreatment that affects Indian children is neglect. While neglect is still significant it often provides greater opportunities to safely maintain children within their home with the availability of services and supports, as opposed to other forms of abuse. Tribal leaders should insist on strong family team meetings, prior to placements or change of placements, at the family meetings waivers are signed and a family can work together on a plan in conjunction with tribal social services. The other item that a tribal leader should do is verify that transfer of jurisdictions are filed early, and are well written by the tribal attorney. As a tribal leader, ensure that all the leaders on your council understand these issues, all of our leaders need to pay attention to this, just as they do with our business related ventures.

The biggest reason that state or county Judges/Commissioners don’t rule in favor of a tribe is because of the introduction of bonding/attachment of the Indian child with their non-native caregiver (e.g. foster family). The bonding and attachment issue is used to oppose placement of an Indian child with an Indian family while the child is in a non-Indian home. This often leads to adoption of the Indian child to a non-Indian family. The state or the attorney of the non-Indian placement tries to delay placement with an Indian placement to increase the chances that the court will see moving the Indian child as harmful to the child. This is a misuse of bonding and attachment theory that seeks to override any cultural considerations of the Indian child and ICWA requirements to place with Indian families. The proponents of bonding and attachment theory in these cases seek to impose a one-dimensional view of the best interests of Indian children that trumps all other considerations. How to effectively combat this is by making your motion for following the placement preference early, don’t wait. Too many times a county/state social worker will wait to push the issue into court, they are not truthful in that they want more time for the bonding argument to work. Don’t wait on the county/state social worker; they aren’t even able to admit to themselves what they are doing because they believe the child is better off with a non-Indian placement.

Another frequent ploy is that the placement will come up with some Indian heritage, don’t allow it, get to a contested hearing EARLY, and call them on their claim to some form of Indian heritage. The new BIA guidelines are clear that county/states are not going to be able to combat a claim on who is or isn’t Indian as far as the bio-parents are concerned, this is up to the Tribe to determine; but the state social worker will assist the placement with their argument of being Indian. It is very frustrating when a jurisdiction change is attempted and a state/county worker will state that the placement has some Indian heritage. When a county/state social worker wants to place in a foster home that is outside of the placement preference, be definitive that this is outside of the placement preference. Don’t be afraid to be assertive as a witness. More and more rulings are going against ICWA and the rulings are at times very arbitrary. But don’t be fooled, they are not at all arbitrary, it is based on the fact that county/state social workers believe the child is better off where they are and the Commissioners/Judges agree, all based on the fact that the child is bonded. Find your legal distinction, have your attorney cite the reference, get yourself called as an expert witness, even if you’re a witness by phone and get a ruling EARLY. If you get a return order and you have a state or county worker refusing to implement because there is an appeal being filed by one of the parties, make them still implement the valid order, don’t be passive. Tribal attorney’s don’t be passive either, file your contempt motion for not following through with a valid order. Time is the weapon used against a tribe.

At the heart of ICWA are state/county ICWA workers. The most powerful professional in the case is the social worker. They can bewilder a client, chase them off, or engage them and help them succeed. The current trend in child welfare in the country is called dispositional alternatives or differential response. This is essentially state funded prevention. The state will screen in more cases, and articulate that their dispositional alternatives are working because they have a lower percentage of filings. With many more cases coming in the front door, the lower percentage of overall filings is still equated to more filings. Time will tell about dispositional alternatives, states are getting waivers and eventually stopping the programs as it is too costly, once the Medicaid waiver has expired. State ICWA workers, need to step up. Keep your own stats, more than half of the children on your caseload should be going home, that is from active cases management and the provision of effective in-home services to prevent removal. Take pride in the amount of children that are ICWA eligible that you are able to transfer back to tribal jurisdiction. Be brave, even if bosses want you to contest the transfer of jurisdiction than articulate the best interest of the child is to be with his family and transfer to the tribe. If the bosses remove you from the case, that in and of itself, will make a statement to the Judge.

Too much is dependent on a fair application of ICWA for state workers to insert their own values. So much attention is paid to relationships between states and tribes, somehow if the tribe is happy, then the state is doing their job? More accurately the emphasis should be on four issues. 1) Child safety. 2) Family reunification opportunities. 3) How quickly transfer of jurisdiction to tribes is facilitated. 4) Follow the ICWA placement preference. State/county governments are very complex and want child welfare implemented in a fashion that they support. There is always a new model that they are seeking to use, solution focused… evidence based. The fact is we as workers need to focus on behaviors of clients, and assisting clients to change their behaviors, not on models. If you continually are unable to assist a client with reunification, you need to reconsider your field. ICWA is an opportunity and a resource for the child and family. Unfortunately, too many states see it as hindering a permanent plan for a child.

Tribal leaders need to expect that an increased number of their children are reunited with their parents, provisions of more adequate in-home services for Indian families, and insist on family team meetings with all providers present, prior to any placements or placement changes. It is very easy to want to be objective as a leader and thereby not set up accountability measures. Your staff are smart, educated, and Indian; they can rise to the level of your expectations.

At the very heart of ICWA is reunification. If you are a social worker, are you able to safely engage a family? Do you fail every time at reunification? The only reason we have ICWA is because of your Indian children being taken away and not allowing them access to their families and tribe. It is so easy to blame everything on child safety, but if you are a social worker and you fight jurisdiction change to tribes and are failing to reunify families, then recognize that in yourself. We do need to work together, as ICWA is under assault. ICWA is about opportunity, helping youth being with their families and extended families. Even if you have nothing to do with ICWA, ask states to support a fair application to the law. In some areas the poor performance in ICWA is a clear civil rights issue, as to the amount of Indian children that are still placed. But if we all supported this law, a law that has helped so many children, it will continue to assist our youth.

John Guenther is an Aleut from the State of Alaska. He has a Master’s of Social Work and has worked in inpatient adolescent treatment for Native American youth, child protection services both with Tribes and State Government, and law enforcement. John has had a social service career that spans back to the 1980’s.