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


William Byler*

The wholesale separation of Indian children from their families is perhaps the most tragic and destructive aspect of American Indian life today.

Surveys of states with large Indian populations conducted by the Association on American Indian Affairs (AAIA) in 1969 and again in 1974 indicate that approximately 25-35 percent of all Indian children are separated from their families and placed in foster homes, adoptive homes, or institutions. In some states the problem is getting worse: in Minnesota, one in every eight Indian children under the eighteen years of age is living in an adoptive home; and, in 1971-72, nearly one in every four Indian children under one year of age was adopted.

The disparity in placement rates for Indians and non-Indians is shocking. In Minnesota, Indian children are placed in foster care or in adoptive homes at a per capita rate five times greater than non-Indian children. In Montana, the ratio of on Indian foster care placement is at least 13 times greater. In South Dakota, 40 percent of all adoptions made by the State’s Department of Public Welfare since 1967-68 are of Indian children, yet Indians make up only 7 percent of the juvenile population. The number of South Dakota Indian children living in foster homes is, per capita, nearly 16 times greater than the non-Indian rate. In the state of Washington, the Indian adoption rate is 19 times greater and the foster care rate ten times greater. In Wisconsin, the risk run by Indian children of being separated from their parents is nearly 1600 percent greater than it is for non-Indian children. Just as Indian children are exposed to these great hazards, their parents are too.

The federal boarding school and dormitory programs also contribute to the destruction of Indian family and community life. The Bureau of Indian Affairs (BIA), in its school census for 1971, indicates that 34,538 children live in its institutional facilities rather than at home. This represents more than 17 percent of the Indian school-age

*Originally published by the Association on American Indian Affairs, 1977. Reprinted by permission of the Association, Tekakwitha Agency Road, #7, Sisseton, SD 57262. This article was written before passage of the Indian Child Welfare Act, which incorporated many of its recommendations.

population of federally-recognized reservations and 60 percent of children enrolled in BIA schools. On the Navajo Reservation, about 20,000 children or 90 percent of the BIA school population in grades K-12 live at boarding schools. A number of Indian children are also institutionalized in mission schools, training schools, etc.

In addition to the trauma of separation from their families, most Indian children in placement or in institutions have to cope with the problems of adjusting to a social and cultural environment much different than their own. In 16 states surveyed in 1969, approximately 85 percent of all Indian children in foster care were living in non-Indian homes. In Minnesota today, according to state figures, more than 90 percent of non-related adoptions of Indian children are made by non-Indian couples. Few states keep as careful or complete child welfare statistics as Minnesota does, but informed estimates by welfare officials elsewhere suggest that this rate is the norm. In most federal and mission boarding schools, a majority of the personnel is non-Indian.

It is clear then that the Indian child welfare crisis is of massive proportions and that Indian families face vastly greater risks of involuntary separation than are typical of our society as a whole.

Some Causative Factors

How are we to account for this disastrous situation? The reasons appear very complex, and we realize we are far from perceiving them clearly or in their entirety. Here we can only offer a rough sketch of some of the factors. These include a lack of rational federal and state standards governing child welfare matters, a breakdown in due process, economic incentives, and the harsh social conditions in so many Indian communities. Our observations are based on a number of years experience working with Indian communities and in the courts in defense of Indian family life.

Standards.The Indian child welfare crisis will continue until the standards for defining mistreatment are revised. Very few Indian children are removed from their families on the grounds of physical abuse. One study of a North Dakota reservation showed that these grounds were advanced in only 1 percent of the cases. Another study of a Tribe in the Northwest showed the same incidence. The remaining 99 percent of the cases were argued on such vague grounds asneglect orsocial deprivationand on allegations of the emotional damage the

children were subjected to by living with their parents. Indian communities are often shocked to learn that parents they regard as excellent caregivers have been judged unfit by non-Indian social workers.

In judging the fitness of a particular family, many social workers, ignorant of Indian cultural values and social norms, make decisions that are wholly inappropriate in the context of Indian family life and so they frequently discover neglect or abandonment where none exists.

For example, the dynamics of Indian extended families are largely misunderstood. An Indian child may have scores of, perhaps more than a hundred, relatives who are counted as close, responsible members of the family. Many social workers, untutored in the ways of Indian family life or assuming them to be socially irresponsible, consider leaving the child with persons outside the nuclear family as neglect and thus as grounds for terminating parental rights.

In the DeCoteau case, the South Dakota Department of Public Welfare petitioned a State court to terminate the rights of a Sisseton-Wahpeton Sioux mother to one of her two children on the grounds that he was sometimes left with his sixty-nine-year-old great-grandmother. In response to questioning by the attorney who represented the mother, the social worker admitted that Mrs. DeCoteau’s four-year-old son, John, was well cared for, but added that the great-grandmotheris worried at times.

Because in some communities the social workers have, in a sense, become a part of the extended family, parents will sometimes turn to the welfare department for temporary care of their children, failing to recognize that their action is perceived quite differently by non-Indians.

Indian child rearing practices are also misinterpreted in evaluating a child’s behavior and parental concern. It may appear that the child is running wild and that the parents do not care. What is labeled aspermissivenessmay often, in fact, simply be a different but effective way of disciplining children. BIA boarding schools are full of children with such spuriousbehavior problems.

Poverty, poor housing, lack of modern plumbing, and overcrowding are often cited by social workers as proof of parental neglect and are used as grounds for beginning custody proceedings. In a recent California case, the State tried to apply poverty as a standard against a Rosebud Sioux mother and child. At the mother’s bidding, the child’s

aunt took three-year-old Blossom Lavone from the Rosebud Reservation in South Dakota to California. The mother was to follow. By the time she arrived one week later, the child had been placed in a pre-adoptive home by California social workers. The social workers asserted that, although they had no evidence that the mother was unfit, it was their belief that an Indian reservation is an unsuitable environment for a child and that the pre-adoptive parents were financially able to provide a home and a way of life superior to the one furnished by the natural mother. Counsel was successful in returning the child to her mother.

Ironically, Tribes that were forced onto reservations at gunpoint and prohibited from leaving without a permit, are now being told that they live in a place unfit for raising their children.

One of the grounds most frequently advanced for taking Indian children from their parents is the abuse of alcohol. However, this standard is applied unequally. In areas where rates of problem drinking among Indians and no-Indians are the same, it is rarely applied against non-Indian parents. Once again cultural biases frequently affect decision-making. The late Dr. Edward P. Dozier of Santa Clara Pueblo and other observers have argued that there are important cultural differences in the use of alcohol. Yet, by and large, non-Indian social workers draw conclusions about the meaning of acts or conduct in ignorance of these distinctions.

The courts tend to rely on the testimony of social workers who often lack the training and insights necessary to measure the emotional risk the child is running at home. In a number of cases, the AAIA has obtained evidence from competent psychiatrists who, after examining the defendants, have been able to contradict the allegations offered by the social workers. Rejecting the notion that poverty and cultural differences constitute social deprivation and psychological abuse, the Association argues that the state must prove that there is actual physical or emotional harm resulting from the acts of the parents.

The abusive actions of social workers would largely be nullified if more judges were themselves knowledgeable about Indian life and required a sharper definition of the standards of child abuse and neglect.

Discriminatory standards have made it virtually impossible for most Indian couples to qualify as foster or adoptive parents, since they based on middle class values. Recognizing that in some instances it is

necessary to remove children from their homes, community leaders argue that there are Indian families within in the Tribe who could provide excellent care, although they are of modest means. While some progress is being made here and there, the figures cited above indicate that non-Indian parents continue to furnish almost all the foster and adoptive care for Indian children.

Due Process. The decision to take Indian children from their natural homes is, in most cases, carried out without due process of law. For example, it is rare for either Indian children or their parents to be represented by counsel or to have the supporting testimony of expert witnesses.

Many cases do not go through an adjudicatory process at all, since the voluntary waiver of parental rights is a device widely employed by social workers to gain custody of children. Because of the availability of the waivers and because a great number of Indian parents depend on welfare payments for survival, they are exposed to the sometimes coercive arguments of welfare departments. In a current South Dakota entrapment case, an Indian parent in a time of trouble was persuaded to sign a waiver granting temporary custody to the State, only to find that this is now being advanced as evidence of neglect and grounds for the permanent termination of parental rights. It is an unfortunate fact of life for many Indian parents that the primary service agency to which they must turn for financial help also exercises police powers over their family life and is, most frequently, the agency that initiates custody proceedings.

The conflict between Indian and non-Indian social systems operates to defeat due process. The extended family provides an example. By sharing the responsibility for child rearing, the extended family tends to strengthen the community’s commitment to the child. At the same time, however, it diminishes the possibility that the nuclear family will be able to mobilize itself quickly enough when an outside agency acts to assume custody. Because it is not unusual for Indian children to spend considerable time away with other relatives, there is no immediate realization of what is happening—possibly not until the opportunity for due process has slipped away.

There are the simple abductions. Benita Rowland was taken by two Wisconsin women with the collusion of a local missionary after her Oglala Sioux mother was tricked into signing a form purportedly granting them permission to take the child for a short visit, but, in fact, agreeing to her adoption. It was months before Mrs. Rowland could obtain counsel and regain her daughter.

It appears that custody proceedings against Indian people are also sometimes begun, not to rescue the children from dangerous circumstances, but to punish parents and children unjustly for conduct that is disapproved of. In a recent Nevada case, a Paiute mother had to go to court to recover her children following her arrest for a motor vehicle violation. Parents of Nevada’s Duckwater Band of Paiutes were threatened with the loss of their children when they sought to open their own school under an approved federal grant and refused to send their children to a county-run school.

A few years ago, South Dakota tried to send an Oglala Sioux child to a State training school simply because she changed boarding schools twice in two months. In a report sent to us by a Minnesota social worker, she unashamedly recounts threatening her Indian client with the loss of her children if she isindiscreet.

And it can be so casual—sometimes just a telephone call from an attorney or even the mere rumor that there is an attorney in the offing is enough to persuade a welfare department to drop the case. Sometimes it can be desperate. Ivan Brown was saved because the sheriff, the social worker and the prospective foster parents fled when the tribal chairman ran to get a camera to photograph their efforts to wrest him from his Indian guardian’s arms.

Economic Incentives. In some instances, financial considerations contribute to the crisis. For example, agencies established to place children have an incentive to find children to place. In towns with large federal boarding school facilities, merchants may fight to prevent their closing. Not long ago, in response to political intervention, one boarding school in the Great Plains was being phased out as unnecessary because the children could do better at home. The merchants complained and, again as a result of political pressure, the full school enrollment was restored. Very recently merchants protested the proposed closing of Intermountain School with its large Navajo enrollment, despite the fact the closing was advocated by the Navajo Tribe.

The Bureau of Indian Affairs and the Department of Health, Education and Welfare (HEW) bear a part of the responsibility for the current child welfare crisis. The BIA and HEW both provide substantial funding to state agencies for foster care and thus, in effect, subsidize the taking of Indian children.

Neither the BIA nor HEW effectively monitor the use of these federal funds. Indian community leaders charge that federally-subsidized foster care programs encourage some non-Indian families to start baby farmsin order to supplement their meager farm income with foster care payments and to obtain extra hands for farm work. The disparity between the ratio of Indian children in foster care versus the number of Indian children that are adopted seems to bear this out. For example, in Wyoming in 1969, Indians accounted for 70 percent of foster care placements but only 8 percent of adoptive placements. Foster care payments usually cease when a child is adopted.

In addition, there are economic disincentives. It will cost the federal and state governments a great deal of money to provide Indian communities with the means to remedy their situation. But over the long run, it will cost a great deal more money not to. At the very least, as a first step, we should find new and more effective ways to spend present funds.

Social Conditions. Low income, joblessness, poor health, sub-standard housing, and low educational attainment—these are the reasons most often cited for the disintegration of Indian family life. It is not that clear-cut. Not all impoverished societies, whether Indian or non-Indian, suffer from catastrophically high rates of family breakdown.

Cultural disorientation, a person’s sense of powerlessness, his loss of self-esteem—these may be the most potent forces at work. They arise, in large measure, from our national attitudes as reflected in long-established federal policy and from arbitrary acts of government.

The main thrust of federal policy, since the close of the Indian wars, has been to break up the extended family, the clan structure, to detribalize and assimilate Indian populations. The practice of Indian religions was banned; children were, and sometimes still are, punished for speaking their native tongue; even making beadwork was prohibited by federal officials. The Dawes Act (1887), the Indian Reorganization Act (1934), P. L. 83-280 (1953), and H. Con. Res. 108 (1953) became the instruments of that policy. They represent some of our experiments to reform Indian family and community life.

One of the effects of our national paternalism has been to so alienate some Indian parents from their society that they abandon their children at hospitals or to welfare departments rather than entrust them to the care of relatives in the extended family. Another expression of it is the involuntary, arbitrary, and unwarranted separation of families.

One of the most disturbing aspects of the whole child welfare tragedy is how little Indian resistance there is in so many cases—and how much fear. CBS once taped an interview with an Indian woman who wept that she did not dare protest the taking of her children for fear of going to jail. In the Great Plains, one Indian judge, an employee of the BIA, dumbfounded when she learned she had had the power to reject the hundred custody petitions presented to her by the county welfare department, grieved that shewould not have placed one those children off the reservationand left her job.

But the crisis is largely invisible—the children are gone. Over the years there has been, uniformly, a great concern among tribal officials about land and water rights, economic development, and the quality of education. In most communities, neither the BIA nor the county welfare department has deemed it necessary to report to the Tribes on the extent of the crisis. In those cases where information is available, tribal governments act swiftly. Too often they lack the financial and legal means to undertake comprehensive programs.

It has already been noted that the harsh living conditions in many Indian communities may prompt a welfare department to make unwarranted placements and that they make it difficult for Indian people to qualify as foster or adoptive parents. Additionally, because these conditions are often viewed as the primary cause of family breakdown and because generally there is no end to Indian poverty in sight, agencies of government often fail to recognize immediate, practical means to reduce the incidence of neglect or separation.

As surely as poverty imposes strains on the ability of families to function – sometimes the extra burden that is too much to bear – so too family breakdown contributes to the cycle of poverty.

Some Destructive Consequences. Because the family is the most fundamental economic, educational, and health care unit in society and the center of an individual’s emotional life, assaults on Indian families help cause the conditions that characterize those cultures of poverty where large numbers of people feel hopeless, powerless, and unworthy.

Parents who fear they may lose their children may have their self-confidence so undermined that their ability to function successfully as parents is impaired, with the result that they lose their children. When the welfare department removes the children, it also removes much of the parents’ incentive to struggle against the conditions under which they live.

Children separated from their parents may suffer such severe distress that it interferes with their physical, mental, and social growth and development.

In her recent study, A Long Way from Home , Judith Kleinfeld observes that the boarding home programs and regional high schools for Alaska Natives arehelping to destroy a generation of village children.

She reports that their high school experience led to school-related social and emotional problems in 76 percent of the students in the rural boarding home program, 74 percent of the students in the boarding school, and 58 percent of the students in the urban boarding home program.

She found thatthe majority of the students studied either dropped out of school and received no further education or else transferred from school to school in a nomadic pattern that create identity problems.

Kleinfeld adds that the high school programs created other severe costs such as:

Identity confusion, which contributed to the problems many students had in meeting the demands of adult life.

Development of self-defeating styles of behavior and attitudes.

Grief of village parents, not at their children’s leaving home, but also at their children’s personal disintegration away from home.

The average program operating costs totaled over $5,000 per student.

A National Institute of Mental Health publication, Suicide, Homicide, and Alcoholism among American Indians , reports:

The American Indian population has a suicide rate about twice the national average . Some Indian reservations have suicide rates at least five or six times that of the Nation, especially among younger age groups. . . . While the national rate has changed but little over the last three decades, there has been a notable increase among Indians, especially in the younger age groups.

Among the nine social characteristics of the Indian most included toward a completed suicide, it includes: "He has lived with a number of ineffective or inappropriate parental substitutes because of family disruption. . . . He has spent time in boarding schools and has been moved one to another.

In our efforts to make Indian childrenwhitewe can destroy them.


It is fitting that the Congress consider these matters. It has plenary power over Indian affairs. Abuses described involve Constitutional issues. They frequently occur in the administration of federal programs and often have the active participation or tacit approval of federal officials. Congress has the power to help correct these abuses and to help Indian families and communities overcome the social and economic hardships they fact.

Therefore, we offer the following summary recommendations. Congress should enact such laws, appropriate such monies, and declare such policies as would:

(1) Revise the standards governing Indian child welfare issues to provide for a more rational and humane approach to questions of custody and to encourage more adequate training of welfare officials;

(2) Strengthen due process by extending to Indian children and their parents the right to counsel in custody cases and the services of expert witnesses, subjecting voluntary waivers to judicial review, and encouraging officers of the court who consider Indian child welfare cases to acquaint themselves with Indian cultural values and social norms;

(3) Eliminate the economic incentives to perpetuating the crisis;

(4) End coercive detribalization and assimilation of Indian families and communities and restore P. L. 83-280 Tribes their civil and criminal jurisdiction;

(5) Provide Indian communities with the means to regulate child welfare matters themselves;

(6) Provide Indian communities with adequate means to overcome their economic, educational, and health handicaps;

(7) Provide Indian families and foster or adoptive parents with adequate means to meet the needs of Indian children in their care;

(8) Provide for oversight hearings with respect to child welfare issues on a regular basis and for investigation of the extent of the problem by the General Accounting Office.

(9) End the child welfare crisis, both rural and urban, and the unwarranted intrusion of government into Indian family life.

We recognize that these issues demand careful consideration over a considerable period of time and involve questions of committee jurisdiction.

The ultimate responsibility for correcting the child welfare crisis must rest properly with the Indian communities themselves. A number are demonstrating today that, informed of the scope of the problem and having available even some of the means, dramatic progress can be made. Adoptive and foster care placements out of the Indian community have virtually ceased on the Warm Springs, Lake Traverse, Blackfeet, and a number of other reservations. Given the opportunity, Indian people will initiate their own, more effective programs for families and children, such as those developed by the Devils Lake Sioux, the Eastern Band of Cherokee Indians, the Winnebago of Nebraska, and the Wisconsin American Indian Child Welfare Service Agency.

The training and employment of Indian lawyers, teachers, boarding school personnel, social workers, pediatricians, mental health professionals, and professional foster parents is vitally important. Tribal judges and police need more adequate training.


Measured in numbers, measured in terms of human suffering, and as a measure of the condition of our society and our government, the Indian child welfare crisis is appalling.

The American public will support the remedial measures that are necessary. In one New York community alone, twenty thousand citizens signed petitions calling for oversight hearings and volunteers raised funds to enable some of the witnesses to appear.

Indians, blacks, Chicanos, the poor, and parents that do not meet our social norms—all are exposed to extraordinary risks of losing their children. If even one child is taken unjustly, all children are threatened. In the words of John Woodenlegs, a Northern Cheyenne,There is only one child, and her name is Children.