The Indian Child Welfare Act: Where Are We Today?

In August of 2009, Myron Standing Bear and his family were informed that their Section 8 voucher application had been approved. At that time, they had been on the waiting list for 11 years.

Upon finding a home, however, they were told by their caseworker that they were immediately being taken off of the Section 8 housing list, where they had – at long last – attained the number 1 ranking. They were put instead on the public housing list, where their ranking is now number 564, the San Francisco Bayview explains.

“I have been working in the Housing Authority for over 20 years. We do not work with Indians, Indian tribes or the Indian Child Welfare Act. Never have … never will,” said the caseworker at the San Francisco Housing Authority to Standing Bear, a father of two and himself a Native American social worker.

With this despicable proclamation from the Housing Authority was launched his family’s journey into their current state of homelessness. Mr. Standing Bear has been living out of his car with his two disabled teenage sons, who, like him are members of the Oglala Lakota Sioux Nation.

Standing Bear was granted guardianship of his two sons by his tribe, a sovereign nation located in South Dakota, under the Indian Child Welfare Act.

Congress passed the Indian Child Welfare Act in 1978 in response to the extremely high number of Indian children being removed from their homes by both public and private child welfare agencies.

A BRIEF HISTORY

In his opening remarks while presiding over the Indian Affairs Subcommittee hearings on Indian Child Welfare in 1974, South Dakota Senator James Abourezk explained:

    It appears that for decades Indian parents and their children have been at the mercy of arbitrary or abusive action of local, State, Federal, and private agency officials. Unwarranted removal of children from their homes is common in Indian communities. Recent statistics show, for example, that a minimum of 25 percent of all Indian children are either in foster homes, adoptive homes, and/or boarding schools, against the best interest of families, tribes, and Indian communities. Whereas most non-Indian communities can expect to have children out of their natural homes in foster or adoptive homes at a rate of 1 per every 51 children, Indian communities know that their children will be removed at rates varying from 5 to 25 times higher than that.

Senator Abourezk added that the “Federal Government for its part has been conspicuous by its lack of action. It has chosen to allow these agencies to strike at the heart of Indian communities by literally stealing Indian children, a course which can only weaken rather than strengthen the Indian child, the family and the community. This, at a time when the Federal Government purports to be working to help strengthen Indian communities. It has been called cultural genocide.”

The roots of cultural genocide – whether masked in the rubric of assimilation or as child protection – must be understood, and they extend deep into European culture, as Margaret A. Waller and Michael Yellow Bird of the School of Social Work at Arizona State University explain:

    Since first contact, the well-being of Indigenous Peoples has been continuously challenged by internal colonialism. Europeans interpreted Indigenous Peoples’ unfamiliar physical appearances, beliefs, and practices as signs of biological, intellectual, cultural, and moral inferiority. In the minds of European colonizers, this interpretation was justification for exploitation, appropriation of land and resources, and genocide, all of which were, according to the Europeans, “God’s will.” Between 1500 and 1900, slavery, disease, introduction of alcohol, warfare, and forced removal from traditional lands all contributed to genocide that destroyed between 95 and 99 percent of the Indigenous population. As a continuing consequence of internal colonialism, Indigenous Peoples today contend with more severe problems related to income, education, occupation, employment, health care, mortality and housing, than any other population group in the United States.

“The boarding school era is the first generation of child removal and assimilationist welfare policy. The national Indian Adoption Project of 1958-1968 represents the second generation of child removal and assimilationist welfare policy,” explains Lila George in the industry journal Multicultural Social Work. The transformation was made possible by an alliance between the Bureau of Indian Affairs and the Child Welfare League of America.

Citing government documents, George explains that in 1957, the BIA “contracted with the Child Welfare League of America to operate a clearinghouse for the interstate placement of Indian children with non-indian families.” This contract was necessary because the BIA was not authorized to engage directly in adoption. Commissioned by Congress, the BIA was to act in the best interest of Tribes, hence a direct role in the out-of-culture adoptions would have readily been identified as a violation of this trust.

Thus was born the Indian Adoption Project, which George describes as “a fiscal collaboration between the Bureau of Indian Affairs and the Child Welfare League of America.” The project formalized its operations in 1958, setting about the task of providing adoptive placements for American Indian Children whose parents were deemed unable to provide a “suitable” home for them. The Bureau of Indian Affairs hired social workers to place American Indian children in long-term care with non-Indian families.

The torch had thus been passed to the child welfare agencies, who continued the destructive assimilationist policies of the past under the cover of “rescuing” children from their homes. George continues on to explain that:

    Due to the historical practice of assimilation, as well as economic hardship and nonexistent social welfare services, the Native American family was in a position for governmental intrusion to terminate parental rights for reasons of dependency and neglect. This life situation also suited a market demand for adoptable children. The Native American family ranked on the lowest rung of any social welfare ladder, while the caucasian middle-class family held a valued position in society, supported by the economic-ideological philosophy of assimilation: the conscience of the adoption system was cloaked in the Christian zeal of “saving God’s forgotten children” and economically supported by assimilationist policy.

George explains that the Child Welfare League of America’s Adoption Standards, as set forth as long ago as 1958, explain that “when there is a conflict between the interests of the child and the natural parents, the situation should be resolved in the child’s favor.”

CONCLUSION

Cultural insensitivity, perhaps more properly defined as racial bias or prejudice, continues to play a significant role in the ravaging of Native families. Maria Tenorio, Executive Diretor of the Native American Program of Oregon Legal Services says she has encountered case workers over the years who have simply refused to recognize the Act. She recounts the story of one family in Oklahoma who was not only willing to open up their home to five Native American children, two of whom were their grandchildren, but who had constructed a five-bedroom home to accomodate them: “The case worker refused to move them because he said, ‘They didn’t speak English.'”

According to Art Martinez, Ph.D., Clinical Supervisor with the Tolyabe Indian Health Project, Family Services Program, case worker bias continues to play a significant role in child placements. So, too, can biased judges play a role. Says Martinez: “Biases are operating there. Part of our job is not to get distracted by those biases. I used to be involved in a lot of cases where the social worker would tell me, ‘How can you work with that county? Or how can you work with that worker? Because they openly hate Indians.’ I’ve had judges tell me, ‘I thought we killed all the Indians.'”

Tenorio and Martinez provided their remarks during their respective presentations at the Second Annual National Conference The Indian Child Welfare Act: Unto the Seventh Generation, held in 1992.

Proving once again that the more things change, the more they stay the same. Or, as an agonized Sacramento County Grand Jury explained in the title of its highly-critical report on Child Protective Services issued in 2009: “Nothing Ever Changes… Ever.”


Related reading

For a discussion of the ICWA in a broader global context, see my article Little Angel Bird:
Reflections on a Young Girl’s Death in Alberta

See also generally Under Seige: The Indian Child Welfare Act

Atwood, Barbara Ann, Introduction to Children, Tribes, and States: Adoption and Custody Conflicts Over American Indian Children (January 12, 2010). CHILDREN, TRIBES, AND STATES: ADOPTION AND CUSTODY CONFLICTS OVER AMERICAN INDIAN CHILDREN, Carolina Academic Press, 2010; Arizona Legal Studies Discussion Paper No 10-03.

Atwood, Barbara Ann, Permanency for American Indian and Alaska Native Foster Children: Taking Lessons from Tribes. Capital University Law Review, 2009; Arizona Legal Studies Discussion Paper No. 08-22.

Fletcher, Matthew L. M., The Indian Child Welfare Act: A Case Update (August 2008-August 2009) (September 17, 2009). MSU Legal Studies Research Paper No. 07-21.

Fletcher, Matthew L. M., The Indian Child Welfare Act: A Survey of the Legislative History (April 10, 2009). MSU Legal Studies Research Paper No. 07-06.

Kunesh, Patrice H., Borders Beyond Borders – Protecting Essential Tribal Relations Off-Reservation under the Indian Child Welfare Act (January 12, 2007). New England Law Review, Vol. 42, No. 15, 2007.

See also Lifting the Veil’s ICWA article collection which holds 60 links to scholarly articles, field studies, Congressional testimony and other related resources.