Children's Administration, Department of Social and Health Services
Children's Administration, Department of Social and Health Services
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Indian Child Welfare Manual

BUILDING STRONG, STABLE INDIAN COMMUNITIES THROUGH THE INDIAN CHILD WELFARE ACT

Patrice Kunesh*

I. Introduction

After losing countless battles, after watching so many of their people succumb painfully to slaughter and starvation, the great Indian leaders surrendered with dignity to the more powerful forces for the salvation of their people. After the Battle of the Little Big Horn, Sitting Bull, a Hunkpapa Lakota leader, realized that the greater defeat would have been the extermination of his race. Sitting Bull laid down his weapons and told his people, “Let us put or minds together and see what kind of life we can build for our children.”

Indian people[1] still struggle to survive under the pressures of the majority society. Embedded in this contest are the often competing needs of Tribes to stabilize their communities by protecting Indian children from improvident removals from their families—a product of decades of deliberate discrimination and concerted efforts to suppress tribal sovereignty—and to recognize that the survival of the basic family unit must transcend such tribal-state tensions.

Historically, state courts and welfare agencies have ignored the essential tribal relations of Indian people—the collective responsibility of the Indian community in its relationship with its children. State courts continue to interpret, inappropriately, Indian social, cultural, and political philosophies as alien or threatening. They continue to impose significant restraints on the ability of tribal governments and tribal courts to maintain tribal and family relations with tribal members.

*Originally published in Clearinghouse Review, November 1993. Reprinted by permission of the author, a staff attorney at the Indian Law Support Center/Native American Rights Fund, 1506 Broadway, Boulder, CO 80302.

In enacting the Indian Child Welfare Act (ICWA)[2] in 1978, Congress specifically cited these abuses as the shameful and devastating underpinnings of the removal of thousands of Indian children from their families by state courts and welfare agencies. Indeed, the basic tenets of the ICWA are to prevent further discrimination and destruction of tribal and family interests, and to empower Tribes to assert expansive jurisdiction over Indian child welfare custody proceedings.

This paper discusses the devastating history that provoked Sitting Bull’s plea for peace, and the ICWA, one of the most important pieces of federal legislation recognizing Tribes’ sovereign right to protect the interests of their communities and their children. The ICWA is a recent legislative victory which has proven vital to the survival of Indian people.

II. Centuries of Deliberate Removals

Congressional investigations, in the late 1970s, into the appalling history of the deliberate separation and removal of Indian children from their families revealed startling findings: thousands of Indian children had been forcibly removed from their homes at a rate incredibly disproportionate to the non-Indian population.[3] Many were never seen again by their families.[4] Indian children removals were conducted by social welfare agencies that were discriminatory and intolerant of native culture and customs, and by religious organizations zealous in their attempts to christianize, and thereby gain heavenly redemption for, the native heathens.[5] Mandatory boarding school education, a basic tenet of the assimilationist policy in the late 19 th century, was a most pernicious method of Indian child removal.[6] In the Bureau of Indian Affairs’ (BIA) boarding school system, Indian children were taken from their families on the reservations and sent, sometimes across the country, to attend the schools.

The children were kept at the boarding schools for eight years, during which time they were not permitted to see their parents, relatives, or friends. Anything Indian—dress, language, religious practices, even outlook on life—was uncompromisingly prohibited. Ostensibly educated, articulate in the English language, wearing store-bought clothes, and with their hair short and their emotionalism toned down, the boarding-school graduates were sent out either to make their way in a White world that did not want them, or to return to reservations to which they were now foreign.[7]

Overwhelmed by the tragic history of Indian child removals and the outcry for federal legislation, Congress enacted the ICWA, acknowledging that “there is no resource that is more vital to the continued existence and integrity of Indian Tribes than their children.”[8] Congress also declared that part of the Unites States’ trust responsibility to Native Americans is “to protect the best interests of Indian children and to promote the stability and security of Indian Tribes and families.[9]

The primary provisions of the ICWA, remedial in nature, delineate jurisdictional boundaries over Indian child custody proceedings by “establishing minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes or institutions which will reflect the unique values of Indian culture.”[10] To fulfill these purposes, the ICWA establishes specific procedures that state courts must follow when dealing with an Indian child custody proceeding. Generally these procedures are:

1. Tribal courts have exclusive jurisdiction[11] over Indian child[12] custody proceedings[13] when the child resides or is domiciled[14] on the reservation, and have jurisdiction concurrent with the state’s over an Indian child who does not reside within the reservation;

2. Notice to the Indian child’s Tribe must be given if a child custody proceeding originates in a state court, and the Tribe has a right to intervene in the state court proceeding;[15]

3. The state court must transfer[16] the case to tribal court if the Tribe or either parent requests a transfer, absent an objection by a parent (not a party seeking adoption). The state court can refuse to transfer the case to tribal court for “good cause”;

4. If a case remains in state court, an order terminating parental rights requires proof beyond a reasonable doubt, and a foster care placement can be ordered only upon a showing of clear and convincing evidence;[17]

5. If an Indian parent loses parental rights, the state court must give adoption preference to the Indian family and Tribe in the following order:

(a) a member of the child’s extended family,

(b) other members of the child’s Tribe; and

(c) other Indian families.

Only after depleting these resources may an adoption be made to a non-Indian family. A state court may disregard these preferences if it can prove good cause;[18]

6. If a state court proceeding or placement violates the provisions of the ICWA, the proceeding or placement may be invalidated upon the petition of the child’s parents, Indian custodian, or Tribe.[19]

As discussed below, these provisions have been repeatedly reviewed and interpreted by state courts. The “good cause to the contrary” provisions, in particular, are employed as bases for refusing to transfer state jurisdiction over Indian child custody proceedings to tribal courts and for avoiding application of the ICWA’s placement preferences.

III. State Courts’ Refusal to Abide by ICWA’s Jurisdictional Dictates

A threshold issue of the ICWA is which court, state or tribal, has jurisdiction over the Indian child custody proceeding. As noted above, the ICWA has two jurisdictional provisions: When the Indian child resides or is domiciled on the reservation, the tribal court has exclusive jurisdiction over the child custody proceedings; when an Indian child resides off the reservation, the state’s jurisdiction is concurrent with the Tribe’s. Section 1911 of the ICWA requires state courts to transfer the case to a petitioning tribal court, absent good cause to the contrary. Because most Indian child custody proceedings are initiated by state courts, however, tribal courts must obtain jurisdiction over the case by petitioning the state court for a transfer. Even if the tribal court expeditiously submits its petition to transfer the case, state courts continually refuse the request, finding a plethora of “good cause” justifications. Since the ICWA does not define “good cause,” many state courts fashion a “good cause” or “best interests of the child” rationale by relying on non-binding BIA guidelines.[20]

According to the BIA Guidelines, “good cause to the contrary” that justifies a denial of a request for transfer to a tribal court occurs when (1) the Tribe does not have a tribal court as defined by ICWA, (2) the proceedings are at an advanced stage when the petition to transfer was received and the petitioner, usually the Tribe, did not file the petition promptly after receiving notice of the hearing, (3) the Indian child is over 12 years of age and objects to the transfer, (4) evidence necessary to decide the case could not be presented adequately without undue hardship to the parties or the witnesses, or (5) the parents of a child over five years of age are not available and the child has had little or no contact with the child’s Tribe or members of the child’s Tribe. [21] The Guidelines also indicate, however, that the “[s]ocio-economic conditions and the perceived adequacy of tribal or Bureau of Indian Affairs social services or judicial systems may not be considered in a determination that good cause exists.”[22]

State courts refuse to transfer an Indian child custody proceeding to a tribal court most often when they perceive that the transfer would result in a procedural hardship, due to a tribal court’s distance from the state court—a forum non conveniens argument. In In re Robert T. ,[23] for example, the state court refused to transfer a parental termination proceeding from California to the Santo Domingo Tribal Court in New Mexico. The court reasoned that, since all but one of the witnesses for the case were located in California, “the state court forum provided the better opportunity for the production of valuable evidence.”[24] The court acknowledged that, in effect, it was deliberately inhibiting the ability of distant tribal courts to petition state courts to transfer jurisdiction, noting that “this criterion will tend to limit transfers to cases involving Indian children who do not live very far from the reservation.”[25]

The forum non conveniens argument seems to be used by state courts as an offensive tactic either to protect the pre-adoptive non-Indian foster parents or to resist reuniting an Indian child with its Indian family that the state court has deemed unsuitable. For example, in Department of Social Services v. Coleman ,[26] South Carolina sought to terminate the parental rights of Indian parents. The parents moved to transfer the proceeding to the Cheyenne River Sioux Tribal Court, but the court denied the motion under a forum non conveniens argument. Although the state court was aware that the prospective adoptive parents did not meet the ICWA’s placement preferences, the court reasoned that the witnesses necessary to testify in the termination action on behalf of the non-Indian foster parents’ adoption application could not afford to travel to South Dakota.[27] The court contrarily determined, however, that the Tribe could more “easily” participate in the South Carolina proceedings than the witnesses in South Carolina could participate in a tribal court proceeding, because the Tribe would not need to overcome the ICWA’s placement preferences and would need fewer witnesses at any placement hearing.[28] Implied in the court’s decision not to transfer the case is a distrust of the tribal court’s ability or willingness to exercise objectively its inherent rights to provide for the best interest of all of its members. The state court usurped the Tribe’s role by forging a forum non conveniens argument contrary to the ICWA’s mandates.

State courts also find “good cause” not to transfer Indian child custody cases to tribal court based not on jurisdictional grounds but, rather, on a substantive determination of what constitutes the best interests of the Indian child. For instance, in In re Adoption of T.R.M. ,[29] an Indian mother voluntarily relinquished her newborn child to a non-Indian couple and later sought to regain her child.[30] The court hedged its decision not to transfer the case to tribal court with a good cause justification, stating that the “paramount interest is the protection of the best interests of the child.”[31] The court thus denied the Tribe’s petition to transfer, finding that the child’s relationship with the non-Indian family was paramount to the Tribe’s interest as parens patriae of its members. Like many other state court decisions which staunchly retain jurisdiction over Indian child welfare matters, the court’s reasoning appeared, essentially, to be more motivated by its desire to protect its decision-making authority than by its concern for fulfilling the jurisdictional mandates of the ICWA.[32]

In a generally well-reasoned decision upholding the tribal sovereignty dictates of the ICWA, an Illinois court rejected a forum non conveniens argument in In Interest of Armell[33] and transferred jurisdiction of the Indian child custody hearings to the Prairie Band of Potawatomi Tribal Court in Nebraska. The state court found that when the foster parents moved to California the Illinois forum was no more accessible than the tribal forum in Nebraska. The court also soundly rejected a “liberal expansion the forum non conveniens doctrine [which] would preclude transferring jurisdiction except in cases where the child resides on or near a reservation.”[34] The court also specifically rejected the application of the best interests test as a basis for denying transfer under

the ICWA’s good cause decision, Mississippi Band of Choctaw v. Holyfield,[35] the court correctly reasoned that Section 1911(b) stood only for “who was to make the custody determination, ‘not what the outcome of that determination should be.’”[36] The court stated that whether the Indian child would remain with her foster parents was a matter for the tribal court to decide.

State courts that seek to comply with the ICWA’s placement preferences are confronted, also, with two serious hindrances. One is the tardy or sporadic participation of the Tribe in state court ICWA proceedings, due usually to limited financial and technical tribal resources. The second is the dire shortage of licensed Native American foster families, located either on reservations or in urban areas.

Many Tribes have endeavored to address both of these concerns by establishing formal Indian Child Welfare programs and Children’s Codes outlining the scope of the Tribes’ involvement in child welfare cases, from notice to intervention, transfer, and placement.[37] Tribes have also established Children’s Divisions of their courts to make the initial determinations of tribal jurisdictions, to accept transfers of state ICWA proceedings, and to decide foster care and adoption placements. In addition, Tribes are dealing with the dire need to find foster families by cross-licensing Indian families residing on and off their reservations and by allowing them to accept Indian and non-Indian siblings. An innovative alternative to the individual Indian foster home, being considered by an eastern Tribe, is a group foster home to provide care and assistance to Indian children and their families.

The success of the Tribes’ commitment, however, is predicated on the cooperation of state courts and child welfare agencies, especially with respect to timely notifications of state court proceedings to ensure prompt tribal interventions in the cases. To this end, many Tribes are also negotiating, pursuant to Section 1919 of the ICWA, tribal-state agreements defining the sovereigns’ joint roles and responsibilities in handling Indian child welfare proceedings. A common value framework established through tribal-state agreements and based on a mutual respect toward the needs of Indian children, families, and Tribes can transcend professional and cultural differences. Tribal-state agreements send clear messages that the community is committed to the protection of the Indian children’s best interests and the promotion of stability and security of Indian Tribes and families.[38]

IV. Promoting Stable and Secure Families

With the passage of the ICWA, Congress implemented the policy of promoting tribal integrity and declared that the Act’s legislative purpose “[s]ignificantly. . . includes both the protection of the ‘best interest of Indian children’ and the promotion of ‘the stability and security of Indian Tribes and families.’”[39] This encompasses the growing recognition that preservation of families through permanent placement, like health and happiness, is an obtainable goal.

The preservation of families is, of course, achieved partially through the prevention of unnecessary foster care placements, resolutions of jurisdictional controversies at the initial stages of an ICWA proceeding, and expedient reunification of children. Such a framework must transcend the “dynamic tension. . . between Anglo and American Indian philosophies concerning individual rights,”[40] as well as the historical tension between state and tribal governments over tribal sovereignty issues, which pit many competing and conflicting interests of the two sovereigns against each other.

It is critical that people who deal with Indian children in the legal system—whether they are native or non-native, lawyers, social workers, or judges—approach each case with the commitment to do their utmost to promote the best interest of the Indian children. As sovereigns, Tribes have the inherent right to self-govern and survive as viable and culturally and politically distinct entities. Tribes must struggle to preserve these rights not only in the context of external pressures to maintain their sovereign status but also from internal pressures to keep Indian children with their families.

Family preservation is also achieved through cooperative problem solving, sharing of information, and delineation of joint responsibilities. The ICWA recognizes these hallmarks and specifically contemplates that Tribes and states may enter into cooperative agreements “with each other respecting care and custody of Indian children and jurisdiction over child custody proceedings, including agreements which may provide for orderly transfer of jurisdiction on a case-by-case basis.”[41]

V. Conclusion

A framework for stability and permanency must begin with the acceptance of shared and complementary values about what children and families need. Keeping families together, reunifying families, and preventing unnecessary disruption are basic values of family preservation imbedded in the ICWA and must be shared by all parties in the child welfare system.[42]

A STRENGTHS APPROACH TO HELPING NATIVE AMERICAN FAMILIES

John Ronnau, ACSW, Ph.D.*

&

Patricia Shannon, M.S.W.

One of the many strengths of Native American cultures is the extensive and rich informal resource networks afforded by family and community which are available to ameliorate family problems; however, when severe problems develop outside assistance may be sought or mandated. Many Native American families continue to experience severe problems, substance abuse, child abuse or neglect, and emotional disturbances in childhood, which too often are ineffectively addressed by the formal child welfare system. Too frequently the tragic result is the family’s temporary or permanent dissolution.

When outside help is necessary, ideally, the worker would be an adequately trained and skillful Native American who could competently assist the family with its problems in a manner consistent and respectful of its values, customs and rituals. Unfortunately, this ideal match is not always available; therefore, having workers who are trained in a helping model designed to safeguard and utilize the strengths of Native American families would seem highly desirable.

The helping approach described in this article, Family Advocacy Case Management, is such a model. Space limitations do not allow for a complete elaboration of the model, which includes goals, standards of objectives, outcome monitoring, strengths assessment tools and a group supervision approach. Instead, this article focuses upon the strengths principles which drive the approach and case examples to illustrate their use.

*Originally published in Indian Child Welfare Digest: Model Practice Approaches , Three Feather Associates, Feb.-March 1990. Reprinted by permission of the author, Dean, Graduate Studies & Sponsored Programs, The University of Texas at Brownsville and Texas Southmost College, Brownsville Texas 78520.


Strengths Approach: Theory and Practice

These strengths principles and the Family Advocacy Model are believed to be applicable to a wide variety of settings and are in keeping with nationally prominent approaches designed to strengthen and preserve families (Boyce, 1979; Edna McConnell Clark Foundation, 1985; Kinney, Haapala, Booth & Leavitt, 1988). Contemporary and historical contributors to social work’s development have made the case that clients are best served when we help them solve their problems by means of their strengths (Cabot, 1926; Gray, Hartman & Saalberg, 1985; Heger & Hunzeker, 1988; Overton & Tinker, 1957; Pinderhughes, 1983; Reynolds, 1951; Solomon, 1976; Solomon, 1985). Social work’s “dual, simultaneous concern for the adaptive potential of people and the ‘nutritive’ qualities of their environments” is fertile ground for the strengths perspective (Germain, 1979). “The strengths perspective is an alternative to a preoccupation with negative aspects of peoples and society and a more apt expression of some of the deepest values of social work” (Weick, Rapp, Sullivan & Kisthardt, 1989, p. 350). The primary goal of the Family Advocacy service is to help the family acquire the resources needed to care for their child. Enabling, which entails “helping a person to mobilize his own drives and abilities of ruse in a desired direction” (Perlman, 1957, p. 197) is a skill essential for the worker implementing the strengths approach.

The worker practicing a strengths approach recognizes that each family is different. Regardless of their difficulties, they are people who have aspirations, goals, and strengths that need to be developed and talents that need to be expressed as well as problems for which they need help (Rapp & Chamberlain, 1985). Use of the strengths approach does not justify a denial of the client’s problems. The difference is that the strengths of the family are more zealously assessed than weaknesses and strengths become the primary means for ameliorating problems.

Principles of the Strengths Approach

The five principles which guide the Family Advocacy model are:

1. The worker is trained and committed to providing culturally competent service.

2. An active role by the family care givers is essential for enabling the child to live in a normal environment.

3. Clients themselves are the best informants regarding their own needs.

4. Services should be provided in the home or other settings appropriate and comfortable to the clients.

5. The relationship between the clients and the service providers is the key to the helping process.

Each principle is briefly described and illustrated with a case example of a special needs Native American adoption.

Case Example

Wiley was approximately four years old when he was abandoned in a small southwestern community schoolyard near several Indian communities. Among the many hardships he had experienced were malnourishment, a broken collarbone and several cuts and abrasions causes by severe physical abuse. He was non-verbal and was soon found to be developmentally delayed. While the authorities investigated every possible lead and searched for clues to his identity, none were ever found. He was known to be American Indian but a tribal relationship was never established.

Wiley was first hospitalized for an extended period of time and then began a series of placements while social workers, authorities, and the juvenile courts began the lengthy process of developing and assuring a permanency plan for him. By the time Wiley was nine years old and legally free for the purposes of adoption he had been in two residential treatment facilities, five different foster homes, and was currently in his ninth placement, a group home for boys.

Wiley was diagnosed as fetal alcohol effect and behaviorally disordered. He was not attached to anyone, had no sense of identity or self and was a very angry child. He required constant supervision due to his fire-setting tendencies which further compounded his predicament, since this latter characteristic made placement resources reluctant to accept him.

Principle 1: The worker is trained and committed to providing culturally competent service.

A preliminary step in becoming a culturally competent worker is self-examination. The worker must possess the self-confidence and self-esteem to not be threatened by cultural differences. Instead, the culturally competent worker not only accepts differences but values and seeks them out as potential strengths for meeting the client’s needs.

Culturally competent helping professionals:

  • Acknowledge cultural differences and become aware of how they affect the helping process.
  • Recognize the influence of their own culture on how they think and act.
  • Are aware of the effects of cross-cultural differences upon communication between worker and client.
  • Are conscious of the meaning of a client’s behavior within his or her cultural context.
  • Can adjust the helping approach to utilize the client’s cultural strengths.

The social worker who was assigned to the case for the purpose of adoptive placement reviewed the waiting pool of adoptive families and found that there was no resource for Wiley. The worker contacted the Indian Child Welfare staff on the reservation nearest to where the youth was found. It was assumed that he was in fact a member of that Tribe. The social worker enlisted the support of tribal social services by doing a full disclosure presentation and enlisting the Tribe’s help to identify potential placement resources. The social worker acknowledged her lack of information about this specific Tribe and its specific customs and traditions and entered into an agreement with tribal social services for them to share the case responsibilities and treatment planning for Wiley’s benefit.

Principle 2: An active role by the family care givers is essential for enabling the child to live in a normal environment.

An elderly medicine man, Mr. N., who lived alone and was in need of care and companionship was identified as a potential resource for Wiley. He was contacted by the social worker in his home at which time the youth’s background, history and predicament was discussed with him. The client expressed an interest in having Wiley share his home and his life. The worker spend several weeks with Mr. N. learning from him the history, culture, and traditions of the Tribe.

Principle 3: Clients themselves are the best informants regarding their own needs.

Wiley was physically very healthy, with average intelligence, and was very good with his hands. He was very active and particularly loved being outdoors. Wiley had shown an interest in American Indian history, particularly the Tribe that he was suspected to have been associated with.

Wiley was taught by Mr. N. the rituals in ceremonial fire building. He began to understand fire as a means of survival and protection versus destruction and anger. While the fire-setting did not stop it became appropriately channeled within his cultural context. In addition, Wiley learned silver-smithing and beadwork, skills that would later become his livelihood.

Principle 5: The relationship between the clients and the service providers is the key to the helping process.

Over time the worker gained the caregiver’s trust through patience and listening. The worker was attentive to the elderly man’s expression of his own needs and the interest he expressed in the child. The mutual needs between the elder and youth were recognized and accepted by the worker. The worker admitted a lack of knowledge about the caregiver’s tribal history and expressed a genuine interest to learn in order to help Wiley. A strong relationship with tribal social services was built because of a willingness to meet in tribal offices, to openly share information, and the genuine belief in the youth’s strengths and the Indian community’s potential for meeting the child’s needs.

Conclusion

Because the worker possessed the self-confidence and self-esteem to recognize the cultural differences and capitalize on them, a workable and positive placement was found for Wiley. Through use of the strengths principles, the worker valued the cultural differences, sought both formal and informal resources and strived to understand the client’s behavior within his cultural context. As a result a youth who was caught in a spiral of behavior problems, repeated rejections and negative expectations was afforded an opportunity to lead a happy and meaningful life.

Although Wiley never became an enrolled member of the Tribe nor adopted according to state law, he was accepted as Indian and became a member of a larger community, a gift which he will never lose, for when the Indian grandfather dies, there will be another to take his place.

REFERENCES

Bryce, M. (1979). Home Based Services for Children and Families. Springfield, IL: Charles C. Thomas

Edna McConnell Clark Foundation (1985). Keeping Kids Together: The Case for Family Preservation. New York.

Cabot, R. (1926). A Wider Fellowship. In Proceedings of the National Conference of Social Work , 53 rd Annual Session. Chicago: University of Chicago Press

Germain, Carel (1979). Social Work Practice: People and Environments (p.8). New York: Columbia University Press

Gray, S.S., Hartman, A., & Saalberg, E.L. (1985). Empowering the Black Family . Ann Arbor: National Child Welfare Training Center.

Hegar, R.L., & Hunzeker, J.M. (1988). Moving Toward Empowerment-Based Practice in Public Child Welfare. Social Work , 33(6), 499-502.

Kinney, J., Haapala, D., Booth, C., & Leavitt, S. (1988). The Homebuilders Model. Improving Practice Technology for Work with High Risk Families . Whittaker, et. al., (Eds.). Seattle, WA: Center for Social Welfare Research, UW School of Social Work, 37-67.

Overton, A., & Tinker, K. (1957). Casework Notebook . Family Centered Project. Greater St. Paul United Fund and Councils, Inc., St. Paul, MN

Perlman, Helen H. (1957) Social Casework . Chicago: University of Chicago Press.

Pinderhughes, E. (1983). Empowerment for Our Clients and for Ourselves. Social Casework , 64, 331-338.

Rapp, C.A., & Chamberlain, R. (Sept.-Oct. 1985)). “Case Management Services for the Chronically Mentally Ill,” Social Work , 14.

Reynods, B. (1951). Social Work and Social Living . New York: Citadel Press.

Solomon, B.B. (1985). How Do We Really Empower Families? New Strategies for Social Work Practitioners.Family Resource Coalition—FRC Report , 3, 2-3.

Weick, A., Rapp, C., Sullivan, W.P., & Kisthardt, W. (1989). A Strengths Perspective for Social Work Practice.Social Work , 350-354.