Post by Okwes on Mar 22, 2006 10:11:36 GMT -5
Young Once, Indian Forever -- A Look at the Indian Child Welfare Act
after 25 Years
By Tina Albert
John and Judy Kelley (not their real names) were confused and upset.
Their foster baby, Benny, had lived with them since he was a month old
and now it looked like they were going to lose him. The caseworker told
them that his birthparents’ parental rights would be terminated, and no
other relatives in Benny’s family could adopt him. It seemed clear to
John and Judy that the courts would give them permission to adopt Benny,
now almost 12 months old. Why then, they asked, did the caseworker tell
them they had no chance of adopting the baby? It didn’t make sense.
After some investigation, John and Judy finally learned why they were
ineligible to be Benny’s adoptive parents. Benny is a Native American
child and Native American children in this country are protected by
legislation unique to their minority group, the Indian Child Welfare
Act, adopted by Congress in 1978. This act stipulates that when Indian
children are removed from their birth families, their tribe is
immediately notified and given the right to intervene on the child’s
behalf. This means that the tribe, not the courts or Social Services,
will decide where a child is placed for foster care and permanent
custody. If the tribe does not intervene, then child welfare agencies
must make every effort to place the child with Indian relatives, the
tribal family or with another Indian family. Thus, these children are
rarely available for adoption by a non-Indian family as Benny’s foster
parents discovered.
History
The Indian Child Welfare Act was created by the federal government to
renew tribal authority in cases of Indian children removed from their
birth families. Before the act was passed, an inordinately high number
of Indian children were taken from their families and given to white,
non-Indian parents for adoption or long term care. Between 1941 and 1978
alone, 68% of all Indian children were taken from their tribes and
placed in orphanages or adopted by white families.
The statistics documenting the removal of Indian children from their
homes are shocking. In 1975, approximately 16 times as many South Dakota
Indian children as white children were living in foster homes. In
Montana, there were 13 times as many children in foster placement, and
in Minnesota, the foster home placement was five times greater for
Indian children as it was for white children. In 1969, a study completed
by the Association on American Indian Affairs showed that approximately
25-35% of Native American children had been separated from their
families on the reservations.
It wasn’t until 1978 that the federal government finally acknowledged
their role in the perpetuation of the cultural genocide of Native
Americans and passed legislation to return jurisdiction of Indian
children to the Indian authorities.
Problems with ICWA Law Today
With the passage of the Indian Child Welfare Act did the situation begin
to improve. Today, children are no longer removed from their families
because of blatant cultural bias against the Indian family, though they
may be removed if abuse is suspected. According to Indian Child Welfare
Act (ICWA), every effort must be made by tribal authorities and social
service agencies to continue a child’s cultural upbringing and Native
American connection. Moreover, when a child must be placed outside his
home, his tribe can intervene to find a Native American foster home for
him.
There are, however, problems with this new law and its ability to
protect the Indian family. Compliance with the law is sporadic among the
states. In Colorado, however, Phyllis Bigpond, Director of the Denver
Indian Family Resource Center, and staff members Deborah Esquibel Hunt,
Ph.D., LCSW (Clinician Services Supervisor) and Pearl Iron Shell, MA
(ICWA Advocate) are working hard to preserve and strengthen Native
American families and to help reduce child abuse and neglect.
When asked how Colorado fared as far as compliance with the ICWA
Proposal, Deborah responded that while no state is in total compliance
with the act, Colorado and Minnesota do better than most. One of the
main problems is that the courts often lack information about ICWA and
how it applies to Indian children. This applies to caseworkers and
foster parents as well. "It’s heart breaking when a fost-adopt family
hasn’t learned about ICWA in their foster parent training," says
Deborah. When they find out that their foster child will most likely be
placed with an Indian family in compliance with ICWA law, they are
surprised and devastated. It is evident that information on the ICWA
Proposal needs to be added to training programs for new foster families.
Fost-adopt families who agree to foster Indian children with the intent
to adopt them should know that adoption is rarely possible.
Another problem related to ICWA law is a shortage of Native American
foster families. The act stipulates that Indian children receive foster
care within their tribes, but foster families must still be licensed and
approved by Social Services. It can be difficult for an Indian family to
get licensed because of the cultural differences in the way Native
Americans take care of their families. For example, their idea of how
many family members can occupy a living space is different. When they
fail to meet the space requirements (e.g., so many square feet of space
available per foster child in the home) designated by social service
agencies; they face discrimination as a potential foster family.
However, Pearl and her staff are actively recruiting new Indian families
for foster care, and slowly their numbers are growing.
When asked about the ability of white families to foster parent Native
American children, Pearl and Deborah both replied that this was
possible, but only if the family is culturally sensitive to the needs of
Indian children. "If the family is willing to spend time with the
child’s tribe and incorporate Native American traditions into family
life, there’s a chance that his Native American identity will develop,"
they agreed. Ultimately though, placing a child with a white family is
their last preference. All three Colorado women would like to see every
Native American child grow up in his native culture. Only then does he
have the best chance to forge a healthy self-awareness and identity.
This is why it’s so important for ICWA law to be understood and
accepted. Indian children have the best chance of developing a strong
sense of who they are if they can live in a Native American family.
ICWA law is not a panacea for Native American children in placement. In
some instances, the act has caused problems for the very children it
tries to protect. There have been a few court cases involving the
placement of Indian children with non-Indian relatives. The white
relatives were refused custody in favor of the tribal family. Another
case involved Indian children who wanted to live permanently with their
white, foster family. Their attachment was with this white family, not
their Indian family. But again, the court denied custody to the foster
parents and the tribe retained the children. In these cases, the
sovereignty of the tribe won out over the individual wishes of Indian
children, their non-Indian relatives and their foster parents.
What is the Answer?
Like all laws, ICWA has its problems and loopholes. The children it
seeks to protect may not want its protection, and the law could
jeopardize the rights of non-Indian relatives. Compliance with the law
is still a problem in some states. Caseworkers, judges, lawyers and
other professionals lack understanding of the law’s nuances, causing
conflict with tribal authorities. There are too few Indian foster and
adoptive families to take care of all the Indian children in placement,
yet those who try to obtain a foster parent license are often denied for
something such as failing to meet space requirements.
If this were a perfect world, we would not need laws like ICWA because
children would not be removed from their families. Unfortunately, we are
far from the day when child abuse and neglect is just a terrible wound
in our history. ICWA law, with all of its loopholes and non-compliant
professionals either ignoring or attempting to work around it, is still
needed to remind us that Indian children belong with Indian families, in
a home for a child that reflects his culture and traditions. One Native
American eloquently expresses the need for ICWA law:
"In 1978 Congress enacted an act titled the Indian Child Welfare Act. It
came about because of the vast amounts of Indian children who were being
adopted or fostered by non-Indians. We were losing our culture through
the loss of our children. Most of the people who were being given the
Indian children were well meaning, some were not. I have heard it said
that an Indian child being raised by a non-Indian is like a swan trying
to raise an eagle. Here I hope will begin the healing we, as Indian
adults need."
Hopefully the healing has begun.
From "Young Once, Indian Forever" at www.angelfire.com.
after 25 Years
By Tina Albert
John and Judy Kelley (not their real names) were confused and upset.
Their foster baby, Benny, had lived with them since he was a month old
and now it looked like they were going to lose him. The caseworker told
them that his birthparents’ parental rights would be terminated, and no
other relatives in Benny’s family could adopt him. It seemed clear to
John and Judy that the courts would give them permission to adopt Benny,
now almost 12 months old. Why then, they asked, did the caseworker tell
them they had no chance of adopting the baby? It didn’t make sense.
After some investigation, John and Judy finally learned why they were
ineligible to be Benny’s adoptive parents. Benny is a Native American
child and Native American children in this country are protected by
legislation unique to their minority group, the Indian Child Welfare
Act, adopted by Congress in 1978. This act stipulates that when Indian
children are removed from their birth families, their tribe is
immediately notified and given the right to intervene on the child’s
behalf. This means that the tribe, not the courts or Social Services,
will decide where a child is placed for foster care and permanent
custody. If the tribe does not intervene, then child welfare agencies
must make every effort to place the child with Indian relatives, the
tribal family or with another Indian family. Thus, these children are
rarely available for adoption by a non-Indian family as Benny’s foster
parents discovered.
History
The Indian Child Welfare Act was created by the federal government to
renew tribal authority in cases of Indian children removed from their
birth families. Before the act was passed, an inordinately high number
of Indian children were taken from their families and given to white,
non-Indian parents for adoption or long term care. Between 1941 and 1978
alone, 68% of all Indian children were taken from their tribes and
placed in orphanages or adopted by white families.
The statistics documenting the removal of Indian children from their
homes are shocking. In 1975, approximately 16 times as many South Dakota
Indian children as white children were living in foster homes. In
Montana, there were 13 times as many children in foster placement, and
in Minnesota, the foster home placement was five times greater for
Indian children as it was for white children. In 1969, a study completed
by the Association on American Indian Affairs showed that approximately
25-35% of Native American children had been separated from their
families on the reservations.
It wasn’t until 1978 that the federal government finally acknowledged
their role in the perpetuation of the cultural genocide of Native
Americans and passed legislation to return jurisdiction of Indian
children to the Indian authorities.
Problems with ICWA Law Today
With the passage of the Indian Child Welfare Act did the situation begin
to improve. Today, children are no longer removed from their families
because of blatant cultural bias against the Indian family, though they
may be removed if abuse is suspected. According to Indian Child Welfare
Act (ICWA), every effort must be made by tribal authorities and social
service agencies to continue a child’s cultural upbringing and Native
American connection. Moreover, when a child must be placed outside his
home, his tribe can intervene to find a Native American foster home for
him.
There are, however, problems with this new law and its ability to
protect the Indian family. Compliance with the law is sporadic among the
states. In Colorado, however, Phyllis Bigpond, Director of the Denver
Indian Family Resource Center, and staff members Deborah Esquibel Hunt,
Ph.D., LCSW (Clinician Services Supervisor) and Pearl Iron Shell, MA
(ICWA Advocate) are working hard to preserve and strengthen Native
American families and to help reduce child abuse and neglect.
When asked how Colorado fared as far as compliance with the ICWA
Proposal, Deborah responded that while no state is in total compliance
with the act, Colorado and Minnesota do better than most. One of the
main problems is that the courts often lack information about ICWA and
how it applies to Indian children. This applies to caseworkers and
foster parents as well. "It’s heart breaking when a fost-adopt family
hasn’t learned about ICWA in their foster parent training," says
Deborah. When they find out that their foster child will most likely be
placed with an Indian family in compliance with ICWA law, they are
surprised and devastated. It is evident that information on the ICWA
Proposal needs to be added to training programs for new foster families.
Fost-adopt families who agree to foster Indian children with the intent
to adopt them should know that adoption is rarely possible.
Another problem related to ICWA law is a shortage of Native American
foster families. The act stipulates that Indian children receive foster
care within their tribes, but foster families must still be licensed and
approved by Social Services. It can be difficult for an Indian family to
get licensed because of the cultural differences in the way Native
Americans take care of their families. For example, their idea of how
many family members can occupy a living space is different. When they
fail to meet the space requirements (e.g., so many square feet of space
available per foster child in the home) designated by social service
agencies; they face discrimination as a potential foster family.
However, Pearl and her staff are actively recruiting new Indian families
for foster care, and slowly their numbers are growing.
When asked about the ability of white families to foster parent Native
American children, Pearl and Deborah both replied that this was
possible, but only if the family is culturally sensitive to the needs of
Indian children. "If the family is willing to spend time with the
child’s tribe and incorporate Native American traditions into family
life, there’s a chance that his Native American identity will develop,"
they agreed. Ultimately though, placing a child with a white family is
their last preference. All three Colorado women would like to see every
Native American child grow up in his native culture. Only then does he
have the best chance to forge a healthy self-awareness and identity.
This is why it’s so important for ICWA law to be understood and
accepted. Indian children have the best chance of developing a strong
sense of who they are if they can live in a Native American family.
ICWA law is not a panacea for Native American children in placement. In
some instances, the act has caused problems for the very children it
tries to protect. There have been a few court cases involving the
placement of Indian children with non-Indian relatives. The white
relatives were refused custody in favor of the tribal family. Another
case involved Indian children who wanted to live permanently with their
white, foster family. Their attachment was with this white family, not
their Indian family. But again, the court denied custody to the foster
parents and the tribe retained the children. In these cases, the
sovereignty of the tribe won out over the individual wishes of Indian
children, their non-Indian relatives and their foster parents.
What is the Answer?
Like all laws, ICWA has its problems and loopholes. The children it
seeks to protect may not want its protection, and the law could
jeopardize the rights of non-Indian relatives. Compliance with the law
is still a problem in some states. Caseworkers, judges, lawyers and
other professionals lack understanding of the law’s nuances, causing
conflict with tribal authorities. There are too few Indian foster and
adoptive families to take care of all the Indian children in placement,
yet those who try to obtain a foster parent license are often denied for
something such as failing to meet space requirements.
If this were a perfect world, we would not need laws like ICWA because
children would not be removed from their families. Unfortunately, we are
far from the day when child abuse and neglect is just a terrible wound
in our history. ICWA law, with all of its loopholes and non-compliant
professionals either ignoring or attempting to work around it, is still
needed to remind us that Indian children belong with Indian families, in
a home for a child that reflects his culture and traditions. One Native
American eloquently expresses the need for ICWA law:
"In 1978 Congress enacted an act titled the Indian Child Welfare Act. It
came about because of the vast amounts of Indian children who were being
adopted or fostered by non-Indians. We were losing our culture through
the loss of our children. Most of the people who were being given the
Indian children were well meaning, some were not. I have heard it said
that an Indian child being raised by a non-Indian is like a swan trying
to raise an eagle. Here I hope will begin the healing we, as Indian
adults need."
Hopefully the healing has begun.
From "Young Once, Indian Forever" at www.angelfire.com.