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2009 Jordan Institute
for Families

Vol. 14, No. 3
June 2009

Enhancing Child Welfare Practice with American Indians

To help child welfare professionals guard against the mistakes of the past and prepare for successful partnerships with American Indian families, this article provides a brief overview of events that have impacted Native families and offers suggestions for strengthening their practice with American Indian families by fully implementing the Indian Child Welfare Act of 1978.

A Brief History
Before 1871, the U.S. government used warfare and other means to try to eliminate American Indians. Tribes that survived this policy of extermination were removed from their lands and forced onto reservations (Halverson, et al., 2002).

Boarding Schools. After 1871 the government policy toward Indians changed to one of assimilation (Halverson, et al., 2002). As part of this policy, from the 1870s through the 1930s many Indian children were taken from their families and raised in boarding schools—harsh, rigid institutions, the primary purpose of which was to “civilize” Indians and eradicate all traces of Native culture.

The boarding schools had a devastating effect on Indian families, in part because they prevented the passing on of traditions and knowledge about how to raise children and be a family. In addition, the schools introduced new and dysfunctional behaviors (Horejsi, et al., 1992).

“Many of the boarding school survivors returned to their tribes/nations and were unable to pick up the thread of family life, inadvertently continuing the legacy of abuse they themselves experienced away from home” (Fox, 2004). Although the boarding school era ended around 1940, their influence continues to be felt by Indian families and children today (Kalambakal, 2001; Andrzejek, 2004).

Adoption and Foster Care. In the years after 1940 the push to assimilate American Indians continued. Adoptions and child welfare interventions were a significant part of this effort. From the 1950s to the 1970s many private organizations tried to “save” Indian children by removing them from their homes and placing them for adoption in non-Native homes (Goldsmith, 2002).

At the same time, Indian children were placed in foster care at disproportionately high rates: a 1969 survey conducted in 16 states with large Indian populations found that between 25% to 35% of all Native children were removed from their families and placed in foster or adoptive homes. In some states Native children were 13 times more likely to be removed from their homes than non-Native children (Goldsmith, 2002; CWLA, 2005). The majority were placed in non-Native foster homes.

Indian Child Welfare Act of 1978
Statistics such as these, as well as ten years of hearings, led Congress to pass the Indian Child Welfare Act of 1978 (ICWA). Congress’ purpose in passing this law was to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families (25 U.S.C. § 1902).

ICWA establishes a minimum federal standard for state removal of children from their homes and guidelines for placement in foster or adoptive homes. To meet this standard, states must demonstrate active efforts have been made to prevent the breakup of the family. If these efforts are unsuccessful, out-of-home placement is possible if a court finds the child is at risk of serious emotional or physical harm.

When placement is necessary, ICWA provides a preference system to keep Indian children in an Indian family whenever possible. Applicable to both foster and adoptive homes, this preference system seeks to preserve American Indian communities and culture and respect tribal sovereignty (Wilkins, 2004).

Tips for Implementing ICWA
Although it’s been more than 30 years since the passage of ICWA, some child welfare agencies continue to struggle to consistently apply this important law. Following are key suggestions for enhancing ICWA implementation in your practice and in your child welfare agency:

1. Identify. To comply with ICWA child welfare workers should inquire whether children/parents are American Indian with every family and at every stage of each family’s case. ICWA applies only to Indian children who are either (1) members of a federally-recognized tribe OR (2) eligible for membership in a federally-recognized tribe AND are the biological children of members of that tribe. For a list of federally-recognized tribes go to <http://www.doi.gov/bia/ia_tribal_directory.html>.

Identifying Indian Heritage
  • Ask the family, including the child, if they are aware of any tribal affiliation.
  • Find out if a parent or grandparent has a tribal enrollment card.
  • Develop a family tree indicating the mother’s and grandmother’s maiden names and the names of the father and paternal grandparents.
  • Contact the appropriate tribe. For a list of federally-recognized tribes go to <http://www.doi.gov/bia/ia_tribal_directory.html>. For contact information for tribes recognized by the state of North Carolina go to <http://www.doa.state.nc.us/cia/tribesorg.htm>.

Source: NYOCFS, 2006

2. Notify. If it learns a child is American Indian, a child welfare agency must immediately contact the child’s tribe to determine whether the child is an Indian child as defined by ICWA (see above). Once tribal affiliation is determined, the child welfare agency must provide written notice of any impending placement proceedings to the child’s parents, Indian custodian, and tribe. ICWA spells out what information must be contained in that notice, which must be sent to the tribe via registered mail, return receipt requested. It is best to phone the tribal contact person and let that person know that you are sending the required registered letter. It is also advisable to make a follow-up phone call a few days after the letter is mailed out.

3. Partner. A cornerstone of strong ICWA practice is active and early participation and consultation with the child’s tribe in the development and review of the service plan (NICWA, 2009; NYOCFS, 2006).

4. Follow Placement Preferences. In the absence of good cause to the contrary, child welfare agencies are required to place the child according to the following order of preferences established by ICWA. Foster care placement preferences: (1) with extended family (third-degree blood ties—first or second cousins, aunts, uncles, grandparents, or stepparents); (2) with Indian foster parents approved by the tribe or with an Indian foster home licensed by the state; or (3) in residential care approved by the tribe. Adoptive placement preferences: (1) extended family, (2) non-related members of the same tribe, (3) other Indian families. These preferences apply even if the tribe elects not to intervene.

Tribes may alter the order of preference for its children, and the child welfare agency must follow this new order. Also, consideration may be given to a parent’s or a child’s wishes with regard to placement. (Note: these preferences are possible because another federal law, the Multiethnic Placement Act, has no effect on ICWA; thus an Indian child may be moved from a non-Indian foster home to comply with these preferences without violating MEPA.)

If an Indian child’s foster care placement disrupts, compliance with ICWA must continue: the agency must send notification via registered mail to the tribe, which has another opportunity to intervene or indicate preferences.

5. Make “Active Efforts.” Under ICWA, child welfare agencies must use “active efforts,” providing remedial services to prevent the breakup of the Native American family. Active efforts are more intensive than "reasonable efforts"—for example, whereas reasonable efforts might be a referral for services, active efforts would be arranging for the best-fitting services and actively helping families engage in those services (NICWA, 2009).

ICWA Learning Resources
There is more to know about ICWA. For additional learning resources, including online courses, see vol. 7, no. 2 of Training Matters <http://www.trainingmatters-nc.org/tm_v7n2/TMv7n2.pdf>.

Working with State-Recognized Tribes

North Carolina is home to eight American Indian tribes. All are recognized by our state but only one, the Eastern Band of the Cherokee, is federally recognized.

Although ICWA does not apply to children and families from state-recognized tribes, current state law and policy encourage partnership between child welfare agencies and state-recognized tribes. State tribes can be utilized as community partners in working with the child and family—for example, as participants in Child and Family Team meetings and as potential sources of support to help the family stay together or reunify. A 2001 North Carolina law (NCGS §143B-139.5A) directs child welfare agencies to give special consideration to state-recognized tribes. Thanks to this law, when they first come into contact with a child, agencies can consider the child’s Indian heritage in accessing services and making the initial placement.

However, because federal law trumps state law, MEPA and other relevant federal laws do apply to children from non-federally-recognized tribes. Therefore, after the initial placement of a child from a tribe that is not federally recognized, the child’s race or ethnicity may not be considered in changing their placement. Similarly, because of confidentiality laws, child welfare agencies cannot automatically notify state-recognized tribes every time an Indian child is involved with the agency.

Members of the General Assembly, the NC Division of Social Services, the NC Commission of Indian Affairs, representatives from state-recognized tribes, and other stakeholders are currently working to clarify and improve this situation. In the meantime, child welfare agencies should continue to seize every opportunity to partner with state-recognized tribes and to engage all American Indians using respectful, family-centered child welfare practice.

References for this and other articles in this issue