Showing 'Indianness' for ICWA Benefits Isn't Easy


Proving Indian identity, a sometimes-difficult task, is a crucial challenge when dealing with Native children in the foster-care system. To be eligible for Indian Child Welfare Act (ICWA) services a child must be a member of a federally recognized tribe or eligible for enrollment, and that’s where some county ICWA services in Colorado have had problems.

Jill E. Tompkins, Penobscot, clinical professor of law and director of the American Indian Law Program at the University of Colorado, says most of the problems relate primarily to improper documentation and poor record-keeping by child-welfare workers. “Proving that a child who comes into the system is Indian poses a problem,” says Nancy Lucero, Choctaw, an assistant professor who works in ICWA and child welfare research at Colorado State University-Pueblo. “Identifying Indian children is a complex task.”

ICWA defines an Indian child as an individual who is unmarried and under the age of 18, is the biological child of a tribal member and is either a member of a federally recognized tribe or eligible for membership.

Documenting that all the requests to confirm eligibility have been sent to tribes is a major challenge, and records must be kept of their responses as well. Colorado handles at least 1,000 ICWA cases a year, and there are many ways a case can go wrong. In one instance, several siblings who have one parent in common were enrolled by a tribe, but one of the children was refused enrollment for no apparent reason. Lucero says tribes can be overwhelmed with hundreds of requests each week relating to whether children are eligible or not.

Another problem, Lucero notes, is that “the courts have so much power” in making sometimes-arbitrary distinctions. “In Denver County, judges were deciding that it’s not considered an ICWA case until the tribe says it is enrolled or eligible for enrollment. The judge might not accept enrollment evidence from the family” but instead insist that it come directly from the tribe.

Another big problem in Colorado is that there aren’t enough people willing to run foster homes or be foster parents. There are currently 800 Native children waiting to be placed in the state, says Grant Davis, Tlingit, a foster care recruiter for Denver Human Services. “Being Native, it’s hard [for some people] to get into [providing foster care],” he says. “Some people have misdemeanors or other crimes on their record so they [wrongly] think they might fail the background check. Or they may take the first step but don’t follow through. They have to take a class, then another class—it’s a long process.”

At a recent kinship pow wow a few Natives showed some interest in offering foster care, Davis says, but he didn’t know if they would follow through. He believes “Indian people are losing their culture and depending on white values,” contradicting the Native practice in which “we take care of our own.” In that loss of culture, he says, “kinship is going by the wayside.”

Funding for this story was provided by the George Polk Program for Investigative Reporting.