Supreme Court Debate: Best Interests of Indian Children and ICWA

In April 2013, the Supreme Court considered the case of the South Carolina case involving the Indian Child Welfare Act (ICWA), Adoptive Couple v. Baby Girl. In this case, a father of partial Native American descent sought custody of his daughter after she was placed for adoption in a non-native home as an infant. (More details are available at Adoptive Couple v. Baby Girl.) This is not a new issue; it has been discussed and debated for several decades, since the federal law was passed in 1978. My guess is that anyone reading this has opinions about ICWA, either for or against. That is obvious if one skims through the comments to the article in the Huffington Post, Supreme Court To Hear Arguments on Indian Child Welfare Act.  Even mentioning ICWA can cause normally reserved persons working in child welfare to erupt into contentious debates.

In case you are not familiar with it, “ICWA gives tribal governments a strong voice concerning child custody proceedings that involve Indian children, by allocating tribes exclusive jurisdiction over the case when the child resides on, or is domiciled on, the Native North American Traditional Dressreservation, or when the child is a ward of the tribe; and concurrent, but presumptive, jurisdiction over non-reservation Native Americans’ foster care placement proceedings.” What that means in practical terms is that tribal governments must be notified and can take jurisdiction over a child of Native American ancestry who becomes involved in the foster care system. It is important to note, the word, “can“. Tribal governments have a choice. They can opt to take, or not take, jurisdiction over an Indian child.

The challenges of ICWA are not just about where a child will live, with whom, and who has jurisdiction over the child. There is considerable variability in how tribes approach ICWA, and the resources available to them. Having worked with several tribes on child welfare issues, my observation is that there are vast differences in their approach to ICWA, for many reasons. Different governing bodies, different tribal child welfare systems, and variability in personnel and financial resources are major factors that influence how a tribe will respond when receiving notice that an Indian child has become involved in the child welfare system. Not surprisingly, the relationship between public child welfare agency staff and tribal systems varies as well; an issue that can have a huge impact on how cases are handled.

Based on both personal and professional experiences, I believe it is time to re-evaluate ICWA. I realize that supporters of ICWA may not agree. However, my proposed solution would be an alternative that, hopefully, would be acceptable to both supporters and opponents while preserving the sovereignty of native cultures. Situations like that of the child in “Adoptive Couple v. Baby Girl” are harmful to children. Being placed with a family and removed a year or two or three years later is traumatic and has an adverse impact on long-term health and development, especially for young children. It is paramount that this situation be avoided if at all possible.

My proposed revision to ICWA would facilitate early intervention by tribes to ensure continuity of care. There would be financial supports to allow tribes with limited resources to provide for the care of children. This might be in the form of resources to recruit and train native foster parents or in-home supports for family members of children when they are removed, increasing their capacity to care for the child. Because often tribes are not able to intervene due to resource limitations, this would remove that obstacle while promoting the preservation of the culture. Funds might also be utilized to increase the capacity of non-native families to ensure the cultural background is honored. This might include participation in cultural activities or matching with native families who may not be in a position to take custody but have an interest in preserving the culture. The tribe would receive resources to maintain an on-going connection while the child is in foster care.

In order to address the issue such as what occurred in the Supreme Court case, the window of time during which tribal entities could intervene would be shortened. Tribes might have one year to intervene instead of the full time of involvement in the child welfare system. While the time frame might be shorter, the resources made available at the beginning would make meaningful intervention more accessible. My proposal would allow for tribes who choose to intervene initially to continue their involvement throughout the history of child welfare involvement. However, the option of intervening after a period of time, perhaps one year, would be removed. In practical terms, this would mean that the tribe would not have the option of stepping in after a child has been in placement for longer periods of time, except in cases where they have been involved from the beginning. This would address the potential disruption in situations where a child is about to be adopted or in a long-term, stable environment.

Of course, all native children would have a cultural plan in place to ensure they are exposed to their cultural heritage, regardless of tribal involvement. ALL children in placement and especially children placed with families of a different cultural background should have this happen, IMO. Moreover, the stability and permanency of children in care must be safeguarded to prevent unnecessary trauma.

This proposed change would continue the requirement of notification of tribal authorities at the time of initial removal. Unfortunately, the challenge of identifying potentially eligible children would remain. In some cases, it is not obvious that a child is of native descent and biological parents may not share this information. While situations such as the current Supreme Court case may raise awareness, tribal authorities are the logical persons to provide outreach to members and potential members regarding the ICWA provisions. Child welfare agencies can also provide information when possible. Cooperation between tribal entities and child welfare organizations is essential in order to ensure children are identified as early as possible.

While I recognize there would be details to work through and some challenges would remain with the proposed revision, it behooves us to ensure that children are not unnecessarily traumatized while ensuring that the cultural heritage of all children is preserved. Cases like that of “Adoptive Couple v. Baby Girl” are not healthy for anyone, especially vulnerable children.

I welcome comments and/or thoughts on this topic. As is often the case, my opinions are evolving. While I acknowledge the historical trauma experienced by Native Americans, I do think it is time that we have the (potentially) difficult conversations about addressing the best interests of vulnerable children and ending the continued trauma experienced by children of Native Americans.

Postscript: The Supreme Court Decision is available here. An explanation of the final decision is available on the Huffington Post website.

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About ckhayek

I am a Child Welfare Advocate, Data-geek, Writer (and Reader), Cheesecake Baker, and Stunt Kite Flyer .... balance is important! 8-)
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One Response to Supreme Court Debate: Best Interests of Indian Children and ICWA

  1. TAO says:

    Not about your proposal – about the SCOTUS case.

    The father’s name was spelled incorrectly and his date of birth was wrong when (prior to the babe’s birth) the request was sent to know if the father was a member of the Cherokee first nation. They replied no, but if the information provided in the request was wrong then their answer was not binding. The father had been a member for 10 years.

    The father was served around 4 months after the birth, just days before he was to be deployed to Iraq,and also just before the adoption petition was to be filed. No one had told him about the adoption and he assumed the papers were for full custody to the mother. He revoked his consent immediately.

    The adoption petition was denied so no adoption ever took place. Instead the prospective parents appealed. That is why the babe did not get transferred to the father before the babe was even 6 months old, and instead stayed with the “prospective” parents only because of the appeal process. That is why the babe was transferred to the father as toddler.

    Several disturbing facts of this story, such as orders at the hospital to not tell the father she was in labor. No mention of the adoption, or his rights to consent or refuse adoption, no access to a SW or counselor about adoption – because adoption was being kept from him. The ICPC paperwork that listed the babe as Hispanic so that the sending, and receiving state could approve the transfer of the babe across state lines, (another point the Cherokee Nation would have been advised just after the babe had just been born and ICPC wouldn’t have been approved). You can’t do adoptions like this and not expect problems.

    Another note is that this babe was not in the child welfare system. This was a private domestic adoption – completely different process for different reasons.

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