Indian Child Welfare Act (ICWA)
The Indian Child Welfare Act, often abbreviated as ICWA, is a federal law that was enacted by Congress in 1978. This law establishes the minimum federal standards that must be applied in state child custody proceeding involving Indian children. The ICWA acknowledges and implements the child’s tribe’s right to intervene and participate in state child custody proceedings. The ICWA acts as the federal government’s method of ensuring that state governments honor the political standing that tribes have in the United States.
What is ICWA?
The ICWA applies to any state court proceeding involving an Indian child that may result in a voluntary or involuntary foster care placement; guardianship placement; termination of parental rights; or voluntary or involuntary adoptive placement. This includes all proceedings under WIC §300 et. seq. and WIC §600 et. seq. when the child is in foster care or at risk of entering foster care.
Senate Bill No. 678 (“SB 678”) is a piece of California legislation that was signed into law in 2006. This law amended several sections of the California Welfare and Institutions Code (“WIC”), the California Probate Code (“Probate Code”) and the California Family Code (“Family Code”). SB 678 codified what is required in cases involving Indian children in California.
Click here to take a look at a great ICWA Summary courtesy of the National CASA Association.
Click here for the complete text of ICWA courtesy of National Indian Child Welfare Association (NICWA).
History of ICWA
Indian Boarding Schools
As yet another attempt at assimilating the Indian population into the mainstream population, the federal government, beginning in 1879, funded and authorized the Indian Boarding School System. The schools were run by Christian Missionaries, despite the United State’s policy of separation of church and state. In advocating for the use of Christian teaching and influences in boarding schools by use of Christian educators and missionaries, Indian Commissioner Price had this to say in 1882:
“If we expect to stop sun dances, snake worship, and other debasing forms of superstition and idolatry among Indians, we must teach them some better way…the establishment of industrial schools, where the thousands of Indian children now roaming wild shall be taught to speak the English language and earn their own living, will accomplish what is so much desired, to wit, the conversion of the wild roving Indian into an industrious, peaceable, and law abiding citizen…” 5
The motto of the boarding schools was “kill the Indian, save the man.” 6 That was what the schools attempted to do. Children who attended the boarding schools ranged in age from 5 years old to 21. 7 Children were taken from their homes on reservations by bribery, persuasion, fraud, threats and force. 8 Children who attended were banned from speaking their language, practicing their religion, and wearing their traditional clothes and hairstyles.9 There were given a new, English name in place of the name they had been given by their families.10 The end result for many students was loss of culture, loss of intergenerational family connection, internalized low self worth, physical and sexual abuse and for some, death.11 The trauma experienced by Indian families as a result of the boarding schools is still felt in the Native American community.
The Indian Adoption Project
The Indian Adoption project was funded by the BIA and administered by the Child Welfare League of American from 1958 through 1967.12 The purpose of the project was to remove Indian children from poverty stricken Native American communities and place these children for adoption into non-Indian homes.13 Although the child welfare policy of the day was, “matching” or pairing adoptive homes and children placed for adoption by race/ethnicity, an exception was made for Native American children in order to provide the possibility for a better life for these children by placing in non-Indian homes.14 “This was the first national effort to place an entire population transracially and transculturally.” 15
Hundreds of children were “adopted out” of the Native American community directly through this project.16 Countless more Native American children were adopted out via state child welfare agencies and private adoption agencies following the model of the Indian Adoption Project. In 2001 the Executive Director of the Child Welfare League of America affirmed the agency’s support of the ICWA by stating: “No matter how well intentioned and how squarely in the mainstream this was at the time, it was wrong; it was hurtful; and it reflected a kind of bias that surfaces feelings of shame.17
Congressional Investigation Child Welfare Practices Relating to Indian Children and Families
Historically Indian children, as recently as the 1950’s, 1960’s and 1970’s, were being removed from their tribal homes and placed in non-Indian foster and adoptive homes and institutions at rates disproportionally higher than federal and state averages.18 In the majority of the cases where Indian children were removed from their homes, approximately 99%, the basis for the removal were vague standards such as deprivation and neglect, only in about 1% of the cases were Indian children removed for alleged “abuse”.19 Social workers and adoption agencies perceptions of what are appropriate child rearing practices did not align with tribal social and cultural norms. Thus, Indian children were being removed from their families and placed into non-Indian homes at disproportionally high rates based on cultural bias against tribal child rearing practices.20
In the 1970’s, at the urging of the Native American community, Congress formed a task force to investigate these practices. In 1976, the American Indian Child Welfare Review Commission issued a report which included the following statistics for California.
Indian Children Placed for Adoption:21
 1 out of every 26.3 Indian children has been adopted.
The adoption rate for non-Indian children was 1 out of every 219.8.
Thus, there were 8.4 times (840 %) as many Indian children in adoptive homes as there were non-Indian children.
92.5 % of these Indian children were adopted by non-Indian families.
Indian Children Placed in Foster Care:22
1 out of every 12 Indian children was in foster care.
The foster care rate for non-Indians was 1 out of every 366.6.
Thus, there were 2.7 times (270 %) as many Indian children in foster care as there were non-Indian children.
No data was available on how many Indian children are placed in non-Indian homes or institutions.
The same disproportionality was seen in other states that were part of the report.23 Nationally, approximately 25 – 35% of all Indian children were placed in foster homes, adoptive homes or institutions.24 The federal Committee on Interior and Insular Affairs, stated in their report that called for the enactment of the ICWA:
“It is clear then that the Indian child welfare crisis is of massive proportions and that Indian families face vastly greater risks of involuntary separation than are typical of our society as a whole." 25
Definitions
Indian Child
The term Indian is defined in many different ways depending on the application. For the purpose of the ICWA, an Indian child means any unmarried person who is under the age eighteen and is either:
1. a member of an Indian tribe or
2. is eligible for membership in and Indian tribe and is the biological child of a member of an Indian tribe.
In other words if the child is not a member, but is eligible for membership in a tribe at least one of the child’s biological parents must be a member of the tribe for the child to be considered an Indian child for the purposes of the ICWA.
Indian Tribe
For the purpose of the ICWA, an Indian Tribe is any federally-recognized tribe, including any Alaska Native village. Tribes of Canada, Mexico or any other foreign country are not considered tribes for the purposes of the ICWA.
WIC §306.6 provides for the court to permit non-federally recognized tribes to participate in the proceedings upon the request of the tribe. This is due to the large number of non-federally-recognized tribes located in California.
Indian Child's Tribe
The Indian child’s tribe is the tribe of which the child is a member of or eligible for membership in. If the child is eligible for membership in more than one tribe, the child’s tribe will be the tribe with which the child has more significant contacts as determined by the court
Extended Family
The child’s tribe’s laws and customs define who is considered the child’s extended family. Some tribes define extended family very broadly for example they make no distinction between first, second or eighth cousin, if you are cousins by any degree you are cousins, period. Other tribes have very specific rules that consider relationships beyond kinship, for example two children who are raised together in the same house may be considered to be siblings even if they have different biological parents. You would have to consult each child’s tribe to know who they consider extended family. In the absence of any tribal customs applying to extended family the following definition applies: a person 18 or older who is the child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or step-parent.
Indian Custodian
An Indian custodian is any Indian person who has legal custody under tribal law or custom or under state law over an Indian child, or who has been given physical custody by the child’s parent. This grant of legal or physical custody does not have to be in writing. If an Indian child is removed while under the physical or legal care of an Indian custodian that Indian custodian will have the same rights as the parents do in the case. It is almost as if there is a third parent involved in the proceedings.
ICWA & CASA
For an informative article click here to read, Indian Child Welfare Act and CASA/GAl Volunteers: Advocating for the Best Interest of Native Children by Abby Abinanti, Yurok Unified Family Court, San Francisco. Courtesy of the National CASA Association.
How Can You Make a Difference?
INQUIRY
As a CASA you can make your own inquiry regarding the child’s Indian ancestry in every case. You can ask the child, the family members or others that you interview if this could be an Indian child. If you discover information that indicates the child may be an Indian child, you should alert the court right away.
NOTICE
As a CASA, if you see any inconsistencies in the Judicial Council ICWA notice form 030, for example, the social worker has stated on the notice form that the child’s birth certificate is unavailable but you also saw a copy of the birth certificate in the file, or the notice says that there is no known address for the maternal grandparent in the case but that address is on a document in the file, you should notify the court as soon as possible so this error can be corrected. It may not seem like much, but cases are overturned for mistakes like this very often and that can lead to delays in permanency for the child.
OUT OF HOME PLACEMENT OF INDIAN CHILDREN
T
there are specific placement preference for the out of home placement of Indian children. These preferences DO NOT include non-relative, non-Indian placements. This is intentional to ensure that we reverse the practice of removing Indian children from their families and placing in non-Indian homes. Yet many Indian children are still placed in non-relative, non-Indian homes. Get informed about the how your county system is doing, check your county statistics online at: http://cssr.berkeley.edu/ucb_childwelfare/CdssFiles.aspx
CULTURAL CASE PLANNING
As a CASA for a Native youth you can make recommendation to the court about culturally specific services that may be available to the Indian child you are an advocate for. You should do your own research to see what resources may be available to Indian children and families in the local community. You can recommend utilizing Native American specific services for the family. You can recommend services available to the Indian child like tribal after school programs, Indian health services, and cultural events.
SECURING THE CHILD'S TRIBAL MEMBERSHIP
Many Indian children in out of home placements are eligible for membership in their tribe but are not officially members. For most Indian children, securing their tribal membership would be handled by their parents, for obvious reasons, that is unlikely to happen for the children you are working with. Thus, the duty falls to the social worker.The importance of securing the child’s tribal membership cannot be stressed enough. It is a permanent political connection for this child which opens the door to personal and social connections as well.
Social workers are so overburdened this aspect of the case may slip through the cracks. As a CASA you can offer to assist in securing the child’s membership by gathering information on the process, gathering information on the child’s family background, and even completing any necessary paperwork.
Since membership requirements and procedures are different for every tribe, you will need to check with the tribe on a case-by-case basis to find out what you need to do.
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Footnotes:
5. Prucha, Francis P., Documents of the United States Indian Policy (University of Nebraska Press 1990) p. 158.
6. Iverson, Peter, We Are Still Here: American Indians in the Twentieth Century (Harlan Davidson, Inc. 1998) p. 21.
7. Prucha (1990) p. 200.
8. Ibid.
9. Iverson (1998) p. 20-21.
10. Id. at p. 21.
11. Child, Brenda J., Boarding School Seasons (University of Nebraska Press 1998) p. 65-67.
12. Indian Adoption Project (July 11, 2007)The Adoption History Project <http://darkwing.uoregon.edu/~adoption/topics/IAP.html> [as of July 30, 2009].
13. Ibid.
14. Ibid.
15. Indian Child Welfare Act (July 11, 2007) The Adoption History Project <http://darkwing.uoregon.edu/~adoption/topics/ICWA.html> [as of August 4, 2009]
16. Indian Adoption Project (2007).
17. Ibid.
18. Indian Child Welfare Act, 25 USC § 1901 et. seq. (1978).
19. Establishing Standards for the Placement of Indian Children in Foster or Adoptive Homes, to Prevent the Breakup of Indian Families, and for other Purposes, H.R.Rep. No. 1386, 2nd Sess. (1978) p. 10.
20. Ibid.
21. Final Report to the American Indian Policy Review Commission, Report on Federal, State, and Tribal Jurisdiction. (July 1976) p. 81-82.
22. Id. at p. 82.
23. Id. at p. 81-85.
24. U.S. House of Representatives. "Establishing Standards for the Placement of Indian Children in Foster or Adoptive Homes, to Prevent the Breakup of Indian Families, and for other Purposes." Report No. 1386. 2nd Session of the 95th Congress, 1978 p. 9.
25. Ibid. |
