User:Fleetham/icwa

During the fifties, sixties, and seventies,  many American Indian tribes had children removed from their parents and placed into non-Indian foster homes or adopted by non-Indian families without the involvement of tribal authorities.

A 1800s consensus that assimilation of Indian tribes into White culture would reduce hostilities and improve their state may have been a continuing influence that drove these out-placement efforts.

Such out-placement of Indian children has been referred to as a "wholesale separation of Indian children from their families". By the mid-seventies in the US, rates of adoption and foster home placement were much higher among Indian children than average, between 130% to 1900% more, and 25% to 35%  of Indian children had experienced some form of separation from their families. In the sixties and seventies, foster-care out-placement of Indian children in the US outpaced the average by 600%. A few states with extremely high rates and boarding schools for Indian children,   established in the late 1800s  and existing into the 1960s*, must account for a good portion of these implausibly-high out-placement rate data.

And removal from immediate family may not have been the overarching concern for many Native Americans; such out-placements are easily viewed as an extension of prior assimilationist policy and were worrisome to tribes. A few Indian families did take in Indian children, but in many states more than 65% of Indian child out-placements were into a non-Indian setting, and a 1969 study of 16 states reveals 85% of non-adoption out-placements and 90% of adoption out-placements were into non-Indian settings.

It is important to view out-placement of Indian children as a complex issue that was often influenced by decision-makers who may have intervened for reasons other than promoting child welfare. The US has a long history of trying to destroy Indian tribes. As a result it is easy to sympathize with those who would protect the continued existence of the tribe by refusing out-placement of Indian children into non-Indian settings even if doing so may provide better benefits than a more culturally-appropriate placement choice can. The best interests of the child are an important consideration when tribal authorities make out-placement decisions, which sometimes do result in non-Indian out-placement.

Early tribal inclusion efforts
While many of the decisions to place Indian children with non-Indian families made prior to 1978 were done in the absence of cooperation with tribal governments, efforts to include tribes did exist. Notably, these measures did not include capacity-building.

The Indian Adoption Project, a joint venture between the Federal Bureau of Indian Affairs, an organ of the Federal Department of the Interior that administers tribal lands and provides education for American Indians, and the Child Welfare League of America, helped place nearly 400 Indian children with White families between 1959 -68, often with tribal approval.

In 1970 state child welfare agencies were ordered to abide by tribal court decisions on cases including Indian children living on reservation land. And in 1974 the same state agencies were instructed to cooperate with tribes in the area of Indian child welfare. But these orders, made by a federal agency, were little followed.

Lack of tribal capacity
In many cases, tribal authorities may have been unable to participate in out-placement decisions due to a lack of capacity. By the sixties the vast majority of tribes had constitutions and bylaws (although most did not include laws relevant to child welfare), and many had participated in delivering human service projects, but most tribal governments did not provide child welfare services. Instead, providers (when they existed) varied widely depending on location and included private agencies and Federal, state, and county governments.

Some Federal bureaucrats saw building tribal governance infrastructure to improve capacity as one way to mitigate Indian child welfare problems. Prior to 1978 the Association on American Indian Affairs discussed capacity-building measures with Federal agencies and tribal leaders, and it assisted one tribe, the Devils Lake Sioux, to establish a tribal child welfare board that could make recommendations to the tribal court in child welfare cases.

Repercussions of a continued lack of capacity
Even now, tribal authorities may have difficulty absorbing Federal child welfare monies not specifically for Indian use. While Federal monies to support child welfare services in states are also sometimes available for use by American Indian tribes, a continued lack of capacity on the part of tribal authorities may prevent access.

Lack of capacity may be one reason Indian children and families are thought of as requiring more-easily accessible services.

Common capacity deficiencies today
This lack of capacity may manifest itself in several different ways: a small need-population may only be allowed access to an insufficient amount of funding, complying with Federal reporting requirements may be too taxing, an inability to articulate a workable relationship with current providers, difficulty obtaining proper foster-care certifications for Indian extended family members willing to provide care, a reluctance to rely upon (sometimes undocumented and opaque) kinship placements, etc.

Indian Child Welfare Act
In 1978 the Indian Child Welfare Act (ICWA) was passed into Federal law. Expressing a "clear preference for keeping Indian children with their families", the Act recognizes the exclusive  right of tribal authorities to make decisions on child custody placement of Indian children, both on    and--when the child is a ward of a tribal court  --off-reservation. It also made available grant monies to allow tribal authorities to institute child welfare programs, a crucial capacity-building allowance.

While the law was well implemented and state governments made efforts to conform to its requirements, by the mid-eighties the number of Indian children removed from their families did not decrease; the act instead resulted in culturally-appropriate placement decisions made by or with the inclusion of tribal authorities.

Two identified deficiencies in this Act include no mechanism monitoring compliance (outside state's Federally-filed Child and Family Services Plans, which, as of 1994, may help determine state compliance with ICWA) and no enforcement mechanism, meaning states are not penalized for non-compliance.

Off-reservation services
Notably, the ICWA does not prevent Indian children being served by non-Indian providers, but instead imposes the inclusion of tribal authorities in all cases, informs states that notice of Indian child cases which include involuntary relinquishment of the child are given to tribes and parents, provides procedure and a higher burden of proof when non-tribal authorities make out-placement decisions, and makes culturally-appropriate placement options something that must be excluded before a non-Indian placement decision can be made.

State non-compliance
Most off-reservation Indian children continue to be served by non-Indian providers but are not always allowed the cooperation with tribal authorities that the ICWA mandates. A review of 1999 state Federally-filed Child and Family Service Plans suggests some states may be unprepared to fully comply with ICWA procedures. In 2003 the Administration for Children and Families said states had, "difficulties reporting on ICWA adherence" and suggested they provide, "a description of the specific measures taken to comply with the law."

As late as the mid-2000s, state ICWA non-compliance is a continuing problem, and a lack of enforcement mechanisms within the Act itself may exacerbate this. This lack of enforcement ability may have led to, "Illinois... ignor[ing] ICWA between 1978 and 1997 without any direct consequences."

Deficient or non-existent reporting on ICWA implementation may make it difficult to determine the efficacy of some states' compliance regimes, or if they exist at all.

State non-compliance is manifold and states may: not easily recognize an Indian child, judge an Indian child not an Indian child through application of the existing Indian family doctrine, resist proper out-placement once an erroneous out-placement decision has been made or the efforts required in order to show family reunification isn't viable, dislike abiding by change-of-jurisdiction orders or the higher burden of proof Indian child cases enjoy, provide insufficient information to the Federal government about their compliance intentions, be unwilling to recognize the own-licensed foster-care settings provided by tribal authorities when licensing requirements differ between state and tribe, be concerned that the more-exhaustive procedures ICWA requires may result in excessive foster-care stays for the Indian child (although 2003 data show such stays seldom exist), etc.

Shared jurisdiction
Both tribal authorities and state governments have concurrent jurisdiction over off-reservation Indian children. Such children can experience a complex situation of sometimes misunderstood jurisdictions, and there are exceptions to ICWA rules which allow both the state or a tribal authority to claim jurisdiction when it would seem the other has primary jurisdiction.

For example, child custody proceedings may be shifted from a state court to a tribal court through the petition of the parent. A tribal court itself can make this petition,  but not in the face of objection by the parent or the child if over 12. Tribal courts may decline a petition to transfer jurisdiction. A 1953 Federal law, Public Law 280, granted some states authority on Indian reservations, and unless a tribal authority has rejected it, these states have concurrent jurisdiction under P.L. 280. Out-placement decisions made by non-tribal authorities may be challenged by tribes on the basis that correct jurisdiction was not recognized or correct procedure was not followed. Tribal membership, or eligibility for tribal membership, determines if an off-reservation child can be considered under ICWA, and because tribal membership guidelines differ from one tribe to another, state governments may have difficulty understanding jurisdiction-status. And while a 2005 Government Accountability Office report does not support its being a frequently-encountered problem, state social workers may believe the provisions included in the Adoption and Safe Families Act adhere to Indian children or supersede ICWA protections.

Each state's Federally-filed Child and Family Service Plan will outline how it intends to comply with the ICWA.

"ICWA applies to proceedings for guardianship, involuntary foster-care placement, status offenses, termination of parental rights,  preadoptive placement,  and adoption.  It does not apply to custody disputes solely between parents  or to juvenile delinquency cases.  "

Definition of Indian child
ICWA covers Indian children both on and off-reservation,** and membership in a Federally-recognized tribe or eligibility for tribal membership is the determining factor when deciding if a child is an Indian child. Children cannot be considered to be under the jurisdiction of two tribal authorities.

The actual language of the ICWA names an Indian child as, "any unmarried person under the age of 18 years of age and (a) a member of an Indian tribe or (b) eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe."

Existing Indian family doctrine
In some states (including California, Indiana, Kansas, Kentucky, Louisiana, Michigan, Oklahoma, and Washington) even if a child can obtain tribal membership an existing Indian family doctrine may preclude the child's ICWA protections if family members are not active tribal participants. If the child lives in a non-Indian family and lacks exposure to Indian culture, this doctrine does not consider eligibility for tribal membership sufficient for the label "Indian child" to be applied. An understanding of the ICWA's purpose is sometimes given as reason for this exception.

Several states where this doctrine was used have since deprecated it. These include Kansas and Oklahoma.

Loss of personal rights
Some criticize the ICWA for placing community rights above those of the individual or for putting parental or tribal rights above those of the child.

Tribal authorities may disregard parental preference for a specific or a non-Indian family when making out-placement decisions. This situation has been described as, "the exclusive power of the tribe trump[ing] individual choice" and further that, "the ICWA... recognizes that the tribe has an interest in the child which is distinct from but on a parity with the interest of the parent."

Indian Child Protection and Family Violence Prevention Act
Coming into force in 1990, the Indian Child Protection and Family Violence Prevention Act regulates the investigation and reporting of on-reservation Indian child abuse and also makes available monies to fund tribal child abuse prevention and treatment.

This Act does not allow convicted felons or those with two or more of certain types of misdemeanors to work with Indian children.