Tag: Indian Child Welfare Act

Race, Tribe and Child Welfare: How Identity Policy Trumps Children’s Needs

rainbow children
Image: nataliekuna.com

Our country has a terrible history with regard to our African-American and Native American citizens. Centuries of racism have led to consequences that last until today, and racism continues to be a fact of life affecting minorities around the nation. But attempts to address historical wrongs can end up further victimizing the very people we are trying to help. A case in point is the Indian Child Welfare Act. While the recognition of these unintended consequences is spreading, some activists are trying to replicate the same harmful “protections” for African American children.

“The removal of Indian children from their natural homes and tribal setting has been and continues to be a national crisis,” according to a report issued in 1976. And indeed, it was estimated that 25% to 35% of Native American children had been removed from their homes and placed in foster homes, adoptive homes, or institutions. About 90% were being raised by non-Indians.

To put an end to “the wholesale separation of Indian children from their families” Congress passed the Indian Child Welfare Act (ICWA) in 1978. ICWA recognized tribal sovereignty over custodial decisions about Native American children, required that child welfare agencies make “active efforts” (defined as greater than the “reasonable efforts” required for other children) to keep Native American children with their families, and established a hierarchy of preferred placements, with family or tribe members as the preferred placements.

Unfortunately, ICWA in practice has had unintended consequences, depriving Native American children of the rights given to other children and putting the wishes of the tribe above the interests of the child, as I described in a recent post.  Because of ICWA, 26-month Lauryn Whiteshield and her twin sister were removed from a non-Indian foster family with whom they had spent more than a year and placed with her grandfather and his wife, despite her long history of child neglect and the fact that there were five other children in the household. But Lauryn never reached her third birthday. Her step-grandmother threw her down an embankment and killed her.

Ironically, a law designed to prevent family separations has turned into a vehicle that separates children from the only family they have known. Two-year-old Andy had lived with his foster parents for almost his entire life. But when they filed to adopt him, tribal officials intervened because of his Navajo and Cherokee ancestry. They wanted to send him to New Mexico to live with strangers and a Texas judge agreed, even though Andy’s birth parents approved of the adoption.

Andy’s foster parents appealed successfully, and eventually the tribe changed its mind. But Texas, Louisiana and Indiana filed a lawsuit along with the foster parents of Andy and two other children, to ensure that no more children would be threatened with removal from their families because of their race. On October 4, 2018, a federal judge in Texas agreed,  ruling that ICWA’s requirement of differential treatment based on race violated Native American children’s right to equal protection under the law. (See analyses by the Chronicle of Social Change and the Goldwater Institute.) The decision has been appealed and the appeals court has issued a stay of the Texas judge’s ruling.

Like Native American children, African-American children have been overrepresented in foster care, adoption, and involvement in child welfare systems. According to federal data, black children were 13.8 percent of the total child population in the United States in 2014. Yet, they constituted 22.6 percent of those identified as victims of maltreatment, and 24.3 percent of the children in foster care.

In order to address the racial disparity in child welfare, agencies around the country have adopted strategies like family group decision making, workforce retraining for “cultural competence,” and attempts to recruit a more diverse workforce. It is not clear that any of these approaches have been successful, in part because disproportional representation in child welfare may be due more to the historical effects of past racism than to a racist child welfare system, as I described in an earlier post.

There is no direct evidence that any of these policies have been harmful, although analysts have certainly expressed concern that artificially trying to equalize the proportion of black and white children removed from their homes could result in less protection for black children. However, things could get a lot worse. Black children could suffer similar consequences as Native American children are suffering if states decide to implement ICWA-like “protections” for them.

And indeed, two Minnesota legislators have proposed the Minnesota African American Preservation Act (MAAPA). Based on ICWA, MAAPA would set a higher bar for removing African American children from their homes than white children. Instead of requiring “reasonable efforts” to prevent removal and to reunify family as current law requires, MAAPA would require “active efforts,” the same term used in ICWA. MAAPA specifically defines these efforts  and states that they must be greater than the reasonable efforts required for other children.

MAAPA would create a new bureaucracy paid for by taxpayers to oversee the new requirements. An “African American Child Well-being Department” within the Department of Human Services would receive notification of all cases involving African-American children and “directly  oversee, review, and consult on case plans and services” offered to these children. The law would also create an African American Child Welfare Oversight Council “to help formulate policies and procedures relating to African-American child welfare services, to ensure that African American families are provided with all possible services and opportunities to care for their children in their homes.” MAAPA would also authorize a set of grants to fund services specifically for African-American families.

So what would the consequences be for African-American children? Like ICWA for Indian children, MAAPA would establish a substandard set of protections for African-American children.   The higher bar for child removal and the lower bar for family reunification could well result in more children being left in, or returned to, homes where they are in danger.

The creation of new bureaucracies based on race would create a fragmented child welfare system based upon the belief that black children and families are fundamentally different from others. Moreover, it might divert funding away from desperately needed uses like adequate staffing and pay for child welfare social workers.

There has been a lot of talk about identity politics and its effect on recent elections and party preferences. ICWA and MAAPA are examples of what might be called “identity policy,” in which people are treated differently based on their genetic ancestry. This is not the right direction for our country.

ICWA is under attack because it sets up a separate–and inferior–set of protections for Indian children. MAAPA would do the same thing for African American children. By all means, let us do what we can to eliminate discrimination by child protective services. But denying these children the right to equal protection under law is exactly the wrong way to help them.

Child Welfare Myths: Indian Child Welfare Act Protects Indian Children

Spearskids
Veronica and Hayley Spears: Traverse City Record-Eagle

Fourteen-year-old Veronica Spears, her twelve-year-old sister Hayley and their fifteen-year-old brother have been living with their foster parents Tim and Anne Dorn for nine years. Valerie and Haylie want to be adopted by the Dorns and have set up a Facebook page to tell their story.  Yet, an Indian tribe has asked a tribal judge to move them in with a foster parent they have met twice.

The Trump Administration’s policy of separating children from their parents created such an uproar around the country and the world that the Administration was forced to back down. Yet, a law that is almost uniformly supported by liberal politicians and activists has for years been ripping children away from the only parents they ever knew. I am referring to the Indian Child Welfare Act (ICWA).

Congress passed ICWA in 1978 to alleviate a national crisis, the wholesale separation of Indian children from their families. But in attempting to right a wrong, Congress created a new threat to the safety and well-being of Indian children. It established a weaker set of protections for Native American children than for other American children and subordinated their best interest to that of the tribe.

The problem with ICWA begins with how it defines an “Indian child.” Any child who is either a member of an Indian tribe or is eligible for membership in a tribe, and is the biological child of a tribe member, is considered an Indian child. While some tribes require a certain percentage of Indian ancestry, others (like the nation’s largest tribe, the Cherokees) will accept those with any amount of Indian blood.

There is no requirement that the child or parent has any connections to the tribe or its culture. That’s how tribes end up deciding the fate of children whose Native American ancestry is less than two percent and those who have no social or cultural connection to a tribe. Veronica and Haley Spears, for example, are less than half native, did not grow up in the native culture and only became members of the tribe until their mother enrolled them after they were removed from her care.

ICWA gives Indian tribal courts jurisdiction over child custody cases involving Indian children living on a reservation. For other Indian children, the state court is required to transfer the case to the tribal court if either parent, or the child’s Indian custodian, requests it. If the case remains in the state court, the tribe also has the right to intervene at any time in the proceedings, and can request transfer to tribal court.

That’s what happened to Lauryn Whiteshield and her sister. The Spirit Lake Sioux Tribe invoked their powers under ICWA to remove them from a non-Indian foster family and place them with their grandfather and his wife, despite her long history of child neglect. On November 26, 2013, a the grandfather’s wife was sentenced to 30 years in prison for throwing Lauryn down an embankment and killing her.

ICWA requires a higher standard of proof to remove an Indian child or terminate the rights of an Indian parent. An agency requesting that an Indian child be placed in foster care or adoption must prove that “active efforts” were made to prevent the breakup of the family. This standard is more difficult to meet than the “reasonable efforts” required for all children under Title IV-E of the Social Security Act. This makes it more likely that Indian children will be left in dangerous homes.

If the court orders a foster care or adoption placement, ICWA establishes an order of preferences, with a member of the child’s extended family being the first choice for both foster care and adoption. For an adoption, the second choice if a member of the extended family is unavailable is other members of the child’s tribe and the third choice is other family members. This makes it easy for tribes to take children away from  foster families like the Spears that may have raised them from infancy and want to adopt them.

ICWA is often used to override the preferences of one or both parents about who will raise their child. In 1985, twin babies were born to Choctaw parents living on a Mississippi reservation. The parents drove 200 miles to give birth, hoping to escape tribal court jurisdiction, and chose a non-Indian adoptive family. The tribe brought the case to the Supreme Court, which upheld the jurisdiction of the tribal court. Ultimately, the tribe returned the babies to the adoptive family chosen by the parents. But the tribe’s right to overrule parents on custody for their children continues in effect.

ICWA has no respect for the importance of bonding between child and caregiver and the trauma imposed by separating children from their parents. In the Spears case, the appellate court that sent the case to tribal court ruled that neither the best interests of the children nor the time the children have been with their current caregivers is relevant to the decision to transfer a case to tribal court.

Guidelines issued by the Bureau of Indian Affairs under the Obama Administration dispelled any doubt about whether the child’s best interests should play a role in Indian child welfare proceedings. They state that courts should not “conduct an independent analysis of the best interests of the child” in making decisions about foster care or adoptive placements, because placement in an Indian home is presumed to be in an Indian child’s best interests.

In my last post I wrote about the disparity between black and white placement rates in foster care. People who consider themselves advocates for black children in Minnesota are proposing legislation that would require “active efforts” to keep black children with their parents and reunify them, over and above what must be done for other children. This term is clearly drawn from ICWA, and like ICWA, the Minnesota legislation subordinates the interests of children to their “tribe” or race.

The Goldwater Institute in 2015 filed a class-action suit in Arizona (A.D. vs. Washburn) that “challenges the constitutionality of ICWA requirements that make the best interests of an Indian child less important than the desires of an Indian tribe when deciding foster care or adoption placements.” Unfortunately, a federal judge dismissed the case in 2017 for lack of standing, without ruling on the constitutionality of ICWA. A three-judge panel is now considering the Goldwater Institute’s appeal of that ruling.

The tragic results of ICWA show what happens when we treat people as part of racial groups rather than individuals. Instead of protecting Indian children, ICWA subordinates their interests to that of the tribe and deprives them of the same protections that are given to their peers who do not have Indian blood.