ICWA: They Don’t Want You to Know About Your Children
Tribal leaders have a host of reasons for frustration with the Trump Administration. Unfortunately, I come to highlight yet another one – the plan on the part of the federal Department of Health and Human Services (HHS) to take back transparency in how American Indian/Alaska Native Children (AI/AN) are treated by states when in foster care. The result will make it harder for tribes to see if states are living up to their obligations under the Indian Child Welfare Act (ICWA).
As many readers will know, ICWA was enacted in the 1970s in response to so many AI/AN children being removed from Indian homes and placed with non-Indian families, making it more difficult for tribes to pass along their cultures to future generations. ICWA puts requirements on states to engage with tribes when their children come into the child welfare system due to alleged neglect or abuse.
Unfortunately, state compliance with ICWA has been uneven at best. South Dakota, for example, has been repeatedly found in litigation to have failed its obligations under ICWA.
In an attempt to address this, HHS under President Obama included significant data collection related to ICWA in an update of a regulation governing state child welfare systems, known by its acronym as AFCARS. (Full disclosure – I served at HHS under Obama.)
This regulation would require states to report on such important issues as whether the child’s parents were members of a tribe and whether a child would qualify for ICWA procedures. The result would be a clearer picture of the extent to which Indian children in a state are – or are not – receiving the protections under ICWA that would help them preserve their tribal connections.
But the Trump Administration has delayed implementation of the AFCARS regulation and re-opened it for comments, signaling in particular an interest in reducing or even eliminating the data collection related to ICWA. Some states have claimed that they are too burdensome.
How many times over the years have tribal leaders heard complaints that their children are a “burden?” Is it really such a burden for states to report on how they are living up to an obligation that dates back to the Carter Administration? Unfortunately, it appears that the Trump HHS thinks this is too much to ask of states.
On the other hand, the National Indian Child Welfare Association supports the AFCARS regulation as it is. The American Bar Association agrees. Key members of Congress who oversee child welfare programs like Senator Ron Wyden (D-OR) and Representative Danny Davis (D-IL) have also registered their concern with what HHS is doing.
Bottom line – the Trump HHS doesn’t want you to know how states are treating your children. Tribal leaders should speak up. And Republican members of Congress who are concerned about AI/AN children like Senator Lisa Murkowski and Representative Tom Cole should do so as well.