In 1978, after more than four years of hearings, testimony and debate, Congress enacted the Indian Child Welfare Act[i] (hereinafter “ICWA”) in response to the “alarmingly high percentage of Indian families … broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.” [ii] Congress also noted “that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.”[iii]
Prior to enactment of ICWA, state government actors followed a pattern and practice of removing between 25 and 35 percent of all Indian children nationwide from their families, placing about 90 percent of those removed children in non-Indian homes.[iv] Recognizing the disparate treatment faced by American Indian and Alaska Native (AI/AN) children and families in the mainstream child welfare and adoption systems, ICWA was drafted with the express purpose of preserving the familial and cultural ties of Indian families.
Although ICWA has done much to improve these numbers, due in large part to lack of effective implementation and compliance in 2011 the National Council of Juvenile and Family Court Judges reported:
Across the United States, Native American children are overrepresented in foster care at a rate of 2.2 times their rate in the general population, 21 states have some overrepresentation, and 26 percent of the states that have overrepresentation have a disproportionality index of greater than 4.1. In Minnesota, the disproportionality is index 11.6.[v]
What makes these statistics even more sobering is that in many of these states the overwhelming majority of Native Americans resided on reservations where ostensibly the state courts and state or county child welfare agencies had no authority to order the removal of Native American children.[vi]
This report will provide background on ICWA and explain its actual and intended impact on the child welfare system, adoption and child custody proceedings. This report will also detail challenges and barriers to full implementation of ICWA including a recent decision of the U.S. Supreme Court, as well as the effects of non-compliance. Lastly, this report will highlight successful State-Tribal collaborations and offer recommendations for strengthening ICWA to further the best interests of AI/AN children, ensuring the security and protection of their Tribes and families.
The ABA does not currently have a policy on ICWA. However, the ABA Section of Family Law publishes a legal guide to ICWA called the Indian Child Welfare Act Handbook.[vii] Additionally, in August 2001, upon submission by the ABA Commission on Homelessness and Poverty, the ABA approved a resolution[viii] calling on Congress to amend Title IV-E of the Social Security Act to provide direct tribal access to federal Title IV-E foster care and adoption funding for children under tribal court jurisdiction.
And in August of 2008, the Commission on Youth at Risk’s policy on Addressing Racial Disparities in the Child Welfare System was approved, calling on Congress to: [ix]
1. Broaden federal reviews of the child welfare system to address racial and ethnic disproportionality and fund reporting, analysis and corrective action responses;
2. Help racial and ethnic minority families have ready access to services to prevent removals from home in both state and tribal systems,;
3. Provide relevant cultural competence training;
4. Provide for a racially and ethnically diverse legal and judicial workforce; and
5. Make changes in law and policy to help decrease disproportionality by subsidizing permanent relative guardianships, giving relative caregivers financial support no less than non-relative caregivers, providing relative caregiver housing support and giving flexibility in having separate licensing and approval standards for kinship placements.
These policy recommendations mirror many of the goals of ICWA, including addressing the disproportionate number of AI/AN youth in the child welfare system, encouraging maintenance of the tribal kinship networks, and recognizing the need for a separate set of standards for identifying appropriate placements and interventions for AI/AN children and youth.
Overview of the Indian Child Welfare Act and the Events Preceding its Enactment
ICWA was preceded by an era of seeking to “civilize” and Christianize AI/AN people through boarding school placement and education that had the effect of permanently removing many Indian children from their families, cultures and identities. The federal government began sending American Indians to off-reservation boarding schools in the 1870s, when the United States was still at war with tribes.[x] Students at federal boarding schools were forbidden to express their culture — everything from wearing long hair to speaking their native language. [xi] About one hundred years later, an Indian Adoption Project was established by the Bureau of Indian Affairs (BIA) and the Child Welfare League of America(CWLA) to provide non-Indian adoptive homes for Indian children whose parents were thought to be incapable of providing a suitable home.[xii]
Immediately prior to ICWA’s passage, in some states the adoption rate of Indian children was 19 times that of non-Indian children, while foster placement of Indian children was 10 times that of non-Indian children.[xiii] Many removals were the product of mainstream child welfare agency ignorance of AI/AN culture and child-rearing practices,[xiv] a devaluing of extended AI/AN family networks,[xv] and mischaracterizing the poverty in Indian communities as neglect.[xvi] Noting these findings, Congress “assumed the responsibility for the protection and preservation of Indian tribes and their resources” and recognized “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 in protecting Indian children.”[xvii]
ICWA recognizes the government-to-government relationship between the United States and Tribes, and affirms the political status of tribal members—ICWA is not based on either race or ethnicity.[xviii] The stated purpose of the Act is “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children…and placement of such children in …homes which will reflect the unique values of Indian culture.[xix] The long-standing clash between Indian tribal values and those of Anglo-American culture is the very problem ICWA was designed to address.[xx]
When appropriately applied, ICWA is designed to comprehensively address child custody proceedings related to Indian children and parents. The Tribal Law and Policy Institute notes[xxi] that ICWA:
1. Regulates States regarding the handling of child abuse and neglect and adoption cases involving Native children by state courts, state Child Protection agencies, and adoption agencies;
2. Sets minimum standards for the handling of these cases;
3. Affirms the jurisdiction of Tribal Courts over child abuse and neglect and adoption cases involving member children; and
4. Establishes a preference for Tribal courts to adjudicate child abuse and neglect cases in situations of concurrent jurisdiction
ICWA applies to cases in State courts only (not Tribal courts) in child custody proceedings (including foster care placement, termination of parental rights, pre-adoptive and adoptive placements), involving an Indian child (any person under the age of 18 who is a member of an Indian tribe or the biological child of a member of an Indian tribe and eligible for membership in an Indian tribe),[xxii] and[xxiii]
1. Determines residency and jurisdiction for children and parents/custodians,
2. Outlines placement preferences,
3. Determines requirements for termination of parental rights, and
4. Explains consequences for non-compliance, including invalidation of court orders and decisions.
In accordance with Title IV-B of the Social Security Act, the Administration for Children and Families (ACF) of the U.S. Department of Health and Human Services requires states to include ‘‘specific measures’’ for ICWA compliance in their Child and Family Service Plans. These specific measures include ‘‘the identification of Indian children, notification of such to the relevant Indian tribe, and preferential placement with Indian caregivers when determining out-of-home or permanent placements for Indian children, provided that the Indian caregivers meet all relevant child protection standards’’[xxiv] With regard to these three specific measures, a study conducted by Limb and Brown reviewed 44 state Child and Family Services Plans (CFSPs).
Out of the 44 CFSP state plans that were reviewed, 15 plans (34.1%) indicated the development of specific measures for the identification of an Indian child; 12 plans (27.3%) indicated that states had developed specific measures regarding notification to the Indian child’s relevant tribe; and, 18 state plans (40.9%) revealed that the state had developed specific measures that gave preference to Indian caregivers when determining out-of-home or permanent placements for Indian children. Of those 18, only one (5.6%) state plan indicated that the state had procedures in place to ensure Indian caregivers meet all relevant child protection standards.[xxv] ICWA and the ACF state plan measures have not been without their detractors, due in part to a history of lack of awareness and appreciation of Indian culture, as well as challenges implementing and monitoring the act.
Two Supreme Court Cases that Have Highlighted these Issues
ICWA non-compliance does not just threaten tribal stability. The consequences of failing to follow ICWA include invalidation of state court proceedings through appeal by either the child or the parent, the possible disruption of a long-standing foster care placement, the voiding of an adoption order, and malpractice actions.
Adoptive Couple v. Baby Girl
This case was decided on June 25, 2013 by the U.S. Supreme Court (570 U.S. ___). Veronica is the daughter of a non-Indian mother and an American Indian father. The mother and father were not in contact during the months prior to Veronica’s birth. The father was not informed when she was born in Oklahoma, and was not aware that the mother intended to have the baby adopted by a non-Indian couple. Veronica was placed by her mother with a prospective adoptive couple shortly after her birth, the couple filed a notice to adopt, and they were permitted to move the child to South Carolina. The father was served four months later, and he immediately took legal steps to gain custody before he was deployed to Iraq. When he returned, Veronica had been with the couple for 27 months. The trial court found that ICWA applied to the proceeding, that the “Existing Indian Family Exception” (EIFE) was inapplicable, that the father did not voluntarily consent to adoption, and that his rights could not be involuntarily terminated due to the standards of ICWA. Thus, the adoption petition was denied and Veronica was placed with her father. The South Carolina Supreme Court affirmed.
The U.S. Supreme Court reversed the decision of the South Carolina Supreme Court and remanded the case back to the state. In a five to four decision, the Court held that ICWA did not bar a state court from involuntarily terminating the father’s parental rights because he had not had “continued custody” or indeed any “custody” of Veronica prior to the trial court’s decision.
As one of the five judges in the majority, Justice Breyer’s concurring opinion expressed concern with the potential future broad consequences of the decision. He noted that the Court’s interpretation of ICWA might (in his view, wrongly) exclude from the Act’s protections too many fathers (e.g., those with visitation rights, fathers who had met their child support obligations, fathers who were deceived about their child’s existence, or fathers who were prevented from providing support to their child).
In her dissenting opinion, Justice Sotomayor expressed even deeper concern:
When it excludes noncustodial biological fathers from [ICWA’s] substantive protections, this textually backward reading misapprehends ICWA’s structure and scope. Moreover, notwithstanding the majority’s focus on the perceived parental shortcomings of Birth Father, its reasoning necessarily extends to all Indian parents who have never had custody of their children.
Because this was a private custody case, there are a number of reasons that it is very distinguishable from the more common state intervention child welfare cases that implicate ICWA. Under federal and state child welfare law, relatives, including non-custodial fathers, must receive prompt notice when a child is removed in a child welfare proceeding. In Adoptive Couple v. Baby Girl, the father did not apparently know about her placement with the adoptive couple until months later. Also, under federal and state child welfare law, states have an obligation to try to engage both parents in the development of a case plan, provision of parental visitation, and work towards a permanency goal, which is usually reunification with a parent. And in adoption cases, best practices generally require that the consent of both parents be obtained early on in the case and that both parents receive counseling and support prior to an upcoming adoption.
There is, in this decision, a stark split in the Court on interpretation of ICWA as it relates specifically to non-custodial fathers in private adoption proceedings. There is also the majority’s arguably narrow holding based upon specific facts of one case. Therefore, it will be important for state judges to make sure that ICWA’s provisions are immediately applied and made applicable to Indian fathers as well as mothers.
Mississippi Band of Choctaw Indians v. Holyfield
Twins whose parents were domiciled and residents of a reservation in Neshoba County, Mississippi were put up for adoption in a neighboring county where they were born after their parents consented to adoption. [xxvi] They were adopted by non-Indian parents. The lower court found the twins were not domiciled and never lived on the reservation and as a result found that ICWA was not applicable. The U.S. Supreme Court, noting Congress’s intent to preserve Indian families, found that Congress did not “enact a rule of domicile that would permit individual Indian parents to defeat the ICWA's jurisdictional scheme simply by giving birth and placing the child for adoption off the reservation.”
The Center for Court Innovation noted that lack of training and education in child welfare was one of the barriers to effective implementation of ICWA, finding that:
federal court interpretation of ICWA is largely overlooked…the case of Mississippi Band of Choctaw Indians v. Holyfield, [at that time] the only instance in which the U.S. Supreme Court ruled upon ICWA, is taught with far less frequency than other landmark cases in the child law canon.
Other Challenges to Effective Implementation of ICWA
Overall, the National Indian Child Welfare Association (NICWA) reports that the application of the Indian Child Welfare Act has not resulted in poorer outcomes for Indian children. In three of the four states that have had more comprehensive data on ICWA cases, Indian children have done as well, if not better than, non-Indian children in state care in relation to the data [the Government Accountability Office] was looking at.[xxvii] For instance, data from four states that could identify children subject to ICWA in their information systems showed no consistent differences when comparing the length of time they spent in foster care compared to Caucasian or other minority children who exited foster care in fiscal year 2003.[xxviii]
While the GAO study focuses on placement outcomes, a report submitted to Congress by the Crow Creek Sioux Nation and seven other tribes in the state of South Dakota highlights the violations of ICWA that have taken place when it comes to the placement of AI children. The report, which was written with the nonprofit Lakota People’s Law Project, concludes that in some instances removal of AI children in South Dakota from tribal homes occurs under questionable circumstances.[xxix] According to the report, as of July 2011, there were 440 AI children in family run foster homes in South Dakota. Of these, 381 (87% or 9 out of 10) resided in non-Native family foster care, a claim that was supported by a National Public Radio series in 2012.[xxx] At the same time, there were 65 licensed Native American foster homes and, based on requests, 13-28 of these foster homes sat empty while the 381 AI children remained in non-Native family placements.[xxxi]
Lack of awareness, oversight and compliance reporting
Since the Act was passed in 1978, its effective implementation and state compliance with its requirements have been unclear. Recent research has uncovered problems related to the states' success in applying the Act, but no nationwide, systematically collected data is available to determine the extent and exact nature of the problems that have surfaced.[xxxii] There are likely many reasons for non-compliance, including lack of education. The failure of many state courts and child welfare agencies to follow the mandates of ICWA is often due to simple lack of knowledge.[xxxiii] In many states, ICWA and laws regarding state-tribal court interaction are seen only as issues for tribal specialists, thus resulting in far too many child welfare caseworkers, supervisors, and attorneys being unfamiliar with ICWA’s requirements.[xxxiv]
While ICWA does make it clear that non-compliance can result in vacating state court decisions, it is difficult to monitor ICWA’s compliance because of lack of firm reporting requirements and because ICWA does not give any federal agency direct oversight responsibility of states’ implementation of the law.[xxxv] As a result, frequent barriers to successful implementation of ICWA have included:[xxxvi]
1. Difficulty in determining a child's Indian heritage and tribal membership eligibility;
2. Lack of appropriate foster and adoptive homes;
3. Lack of tribal access to federal child welfare funding sources;
4. Lack of tribal institutional capacity;
5. Incompatible state laws; and
6. Undeveloped or poor state-tribal relationships.
One effort that should have helped address these challenges was a 1994 amendment to the Social Security Act, requiring states to complete Child and Family Service Plans (CFSRs) indicating the steps the state plans would take to comply with ICWA.[xxxvii] These plans are supposed to be completed in consultation with tribes and tribal organizations and report on how those consultations and collaborations will be carried out. However, while the Administration for Children and Families’ (ACF) CFSRs have identified some ICWA concerns in states, the structure of this oversight tool was designed to review the overall performance of a state’s child welfare system, rather than any particular law or program. [xxxviii] The lack of specificity means that, as a result, [the tool] does not ensure that ICWA concerns will be addressed or that identified problems will be included and monitored in states’ program improvement plans.[xxxix] The National Indian Child Welfare Association found that nearly 80% of CFSRs did not respond to the three required measures for ICWA compliance.[xl]
Measured federal action and attention is needed to overcome this major deficit in reporting and monitoring outcomes and services to tribal courts and AI/AN children and families. A lack of oversight and lack of funding for state and federal ICWA-related initiatives or to enhance tribal capacity to address these cases, significantly reduce the chances of effective implementation of ICWA. And unfortunately, in all areas of human services, tribal access to federal funding has been severely restricted by the inconsistent treatment of tribal governments by federal domestic assistance programs.[xli]
Still, because federal Title IV-E foster care and adoption program funding was, until recently, statutorily reserved for state agencies, tribes were only able to gain access to and administer IV-E funds by entering into tribal-state agreements.[xlii] In 2008, due to federal legislation, the Fostering Connections to Success and Increasing Adoptions Act, tribes became eligible, for the first time, to receive Title IV-E funds directly.[xliii] However, to date only a few tribes have qualified for such eligibility.
The historic focus on federal funding only going to states and counties has had a major impact on the capacity of tribal child welfare services.
The Existing Indian Family Exception (EIFE) Doctrine and Other Child Welfare Law Conflicts
Incompatible laws or state court decisions have also presented challenges to effective ICWA implementation. For example, some state courts have used an “Existing Indian Family Exception” to avoid the application of ICWA when the mother from whom a child is removed is not a Native American (but where the non-custodial father is). Although the majority of states that have considered the EIFE doctrine have rejected it, finding it inconsistent with ICWA’s core purpose, it has been used by a few states.[xliv] Courts in states that have explicitly rejected the doctrine have reasoned that such an exception was not included in the language of ICWA and that it undermines ICWA’s purpose by allowing state courts to impose their own subjective values in determining what constitutes American Indian culture and who is an American Indian.[xlv]
Additionally, some laws that should theoretically support the goals of all child welfare systems have also made ICWA implementation more challenging. For instance, the Adoption and Safe Families Act of 1997 (ASFA) was enacted to minimize the problem of “foster care drift”: children spending their entire childhoods drifting from one temporary placement to another.[xlvi] In practice, ASFA and ICWA were enacted for very different purposes and their differing goals have led to potential conflicts:[xlvii]
1. In many ways, ASFA moves away from the ICWA ideal of reunifying children with their parents unless all other options are exhausted; and
2. Since ICWA heightens the standard of “reasonable efforts” (under ASFA) to reunify families to “active efforts” (ICWA’s own standard - which must include the testimony of a qualified expert witness and enhanced efforts to preserve families), it would stand to reason that any mention of “reasonable efforts” to reunify families in subsequent federal legislation absent language to the contrary should be construed as indicating “active efforts” as it relates to ICWA cases.
Unfortunately case law has provided limited guidance regarding conflicts between ICWA and ASFA, and although ICWA and ASFA should work harmoniously together, in practice too often they do not.[xlviii]
[i] P.L. 95–608, Approved November 8, 1978 (92 Stat. 3069) Indian Child Welfare Act Of 1978. 25 U.S.C. §§1901-63.
[ii] Id. at 1901.
[iv] Matthew L.M. Fletcher, The Origins of the Indian Child Welfare Act: A Survey of the Legislative History, Indigenous Law & Policy Center Occasional Paper 2009-04, http://www.law.msu.edu/indigenous/papers/2009-04.pdf (citing Holyfield, 490 US at 32-33 (citing Indian Child Welfare Program, Hearings before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 93rd Cong, 2d Sess, at 3 (statement of William Byler) (“1974 Hearings”))
[v] Padilla, J. & Summers, A. (2011). Technical Assistance bulletin: Disproportionality rates for children of color in foster care. National Council of Juvenile and Family Court Judges: Reno, NV. Retrieved from: http://www.ncjfcj.org/sites/default/files/Disproportionality%20TAB1_0.pdf
[vi] Indian Child Welfare Act Handbook. B.J. Jones, Mark Tilden, Kelly Gaines-Stoner; 2nd ed. 2008).
[vii] Id. at 2.
[viii] Homelessness and Poverty (Report Nos.105C). 2001 AM 105C
[ix] Commission on Youth at Risk (Report Nos. 107). 2008 AM 107
[x] Charla Bear. American Indian Boarding Schools Haunt Many, NPR Report. May 2008. Available at http://www.npr.org/templates/story/story.php?storyId=16516865.
[xii] Wilkins, A. July 2008 State-Tribal Cooperation and the Indian Child Welfare Act. Pg. 1. Retrieved from: http://www.ncsl.org/print/statetribe/ICWABrief08.pdf
[xiii] Brown, E.F., Limb, G.E., Munoz, R., & Clifford, C.A. (2001). Title IV-B Child and Family Service Plans: An Evaluation of specific measures taken by states to comply with the Indian Child Welfare Act. Seattle, WA: Casey Family Programs; Portland OR: National Indian Child Welfare Association. Pg. 9.
[xiv] ibid citing Hollinger 1992; U.S., House Report, 1978.
[xvi] Id. at 10
[xvii] 25 U.S.C. §1901
[xviii] The Indian Child Welfare Act Summary. Tribal Law and Policy Institute. Available at: http://bit.ly/Z8FmyA
[xix] Id. citing 25 U.S.C.§ 1902
[xx] Brown, E.F., et.al., at 12
[xxi] Tribal Law and Policy Institute.
[xxii] Id. citing 25 U.S.C.§ 1903(1, 4)
[xxiii] Id. citing 25 U.S.C.§ 1911(a), 1912, 1915, 1912(f), and 1914
[xxiv] Limb, G.E. & Brown, E. F. (2008). An examination of the Indian Child Welfare Act section of state Title IV-B Child and Family Services Plans. Child & Adolescent Social Work Journal, 25(2), 99-110. See also: 2005 report from the U.S. Government Accountability Office at: http://www.gao.gov/new.items/d05290.pdf
[xxvi] 490 U.S. 30 (1989).
[xxvii] Simmons, D. (2005). Summary of the 2005 Government Accountability Office Study of the Indian Child Welfare Act. National Indian Child Welfare Association. Retrieved from: http://www.nicwa.org/Indian_Child_Welfare_Act/gao_study/
[xxviii] U.S. Government Accountability Office (2005). Indian Child Welfare Act: Improving compliance through state-tribal coordination. Center for Court Innovation. New York, NY. Pg. 4. Retrieved at: http://www.gao.gov/assets/250/245936.pdf.
[xxix] “Reviewing the Facts: An Assessment of the Accuracy of NPR’s “Native Foster Care: Lost Children, Shattered Families.” Lakota People's Law Project, (2013) at 9. Retrieved from: http://www.lakotalaw.org/wp-content/uploads/2013/01/Reviewing%20the%20Facts,%20An%20Assessment%20of%20the%20Accuracy%20of%20NPRs%20Native%20Foster%20Care,%20Lost%20Children,%20Shattered%20Families.pdf
[xxx] Sullivan, Laura & Walters, Amy. Native Foster Care: Lost Children, Shattered Families. NPR Report. October 2011. Available at: http://www.npr.org/2011/10/25/141672992/native-foster-care-lost-children-shattered-families.
[xxxi] Lakota at 11.
[xxxii] Wilkins at 2.
[xxxiii] Van Straaten, J. & Buchbinder, P.G. (2011). The Indian Child Welfare Act: Improving compliance through state-tribal coordination. Center for Court Innovation: New York, NY. Pg. 4.
[xxxv] U.S. GAO (2005) at 4.
[xxxvi] Wilkins at 4.
[xxxvii] Program Instruction - ACYF-PI-CB-95-12. Retrieved from: http://www.acf.hhs.gov/sites/default/files/cb/pi9512.pdf
[xxxviii] U.S. GAO at 5.
[xl] Brown, E.F., et. al., at 7.
[xli] Brown, E., Scheuler-Whitaker, L., et. al., Tribal/State Title IV-E Intergovernmental Agreements: Facilitating Tribal Access to Federal Resources (Portland, OR: National Indian Child Welfare Association, 2000), pg. 22.
[xlii] Brown, E.F. & Scheuler-Whitaker, L., et. al., at 7.
[xliii] Fostering Connections to Success and Increasing Adoptions Act of 2008 P.L. 110-351
[xliv] In the Matter of A.J.S., A Minor Child, 204 P.3d 543 (Kan. 2009). In this decision, the court abandoned the doctrine which had earlier been applied in the case it overruled, Baby Boy L., 643 P.2d 168.
[xlv] U.S. GAO at 20.
[xlvi] Van Straaten, J. & Buchbinder, P.G. See also: http://www.nicwa.org/law/asfa/asfa-issues.pdf.
[xlvii] Id at 5-6.
[xlviii] Id at 8.