Almost 40 years after the Indian Child Welfare Act (ICWA) passed, American Indian children are still being removed from their homes in highly disproportionate numbers– at a rate almost three times higher than any other ethnicity, excepting African American children.
Minnesota leads the list of states with the worst rates of disproportionate removal– where American Indian children are overly represented in the foster care system– according to a June 2015 report from the National Council of Juvenile and Family Court Judges. Other states with high numbers of disproportionate removal include Nebraska, Iowa, Idaho, Wisconsin, Washington, South Dakota and Oregon.
Even in states without dramatic removal rates– like Arizona and New Mexico– many American Indian children find themselves removed from their families and placed in group homes, treatment centers or foster care.
In McKinley County, New Mexico, American Indian children make up 73 percent of all children in foster care, according to a 2015 third quarter report from the New Mexico Children, Youth and Families Department (CYFD). And in Arizona, over 1,300 American Indian children were in the foster care system as of March 31, 2015, according to a Department of Child Safety Child Welfare Report.
The Indian Child Welfare Act of 1978 applies to any child of American Indian descent who is an enrolled member or eligible for enrollment in any federally recognized tribe. When an American Indian child enters state custody, the state must contact the child’s tribe, and the tribe has the right to transfer the case to tribal court or to participate in court proceedings.
In order to help American Indian children stay connected to their tribal cultures and identities, ICWA also established a placement preference that starts with the child’s extended family and clan relatives and then progresses to enrolled members of the child’s tribe and enrolled members from any tribe– with placement of the child in a non-Indian family as a last resort.
“Any child who might be Native American, they have a [cultural] identity,” said Regina Yazzie, Program Director of the Navajo Nation Division of Social Services. “It’s a benefit.”
Yazzie added that across the country, state agencies struggle to find American Indian foster families for children. Finding placement families on reservation land can prove equally challenging.
Data from the Children, Youth and Families Department of New Mexico shows there are currently 43 American Indian foster care providers who have 79 placements available– nowhere near enough for the 262 American Indian children in New Mexico’s foster care system. Melissa Otero from AdoptUsKids.org also said through an email correspondence that less than 1 percent of all AdoptUsKids placement families identify as American Indian.
When speaking with the Navajo Post, several tribal members mentioned hardships on reservations that negatively impacted families’ ability to foster– including poverty, poor housing, poor mental health care, suicide, and addiction.
“Part of what’s going on [is] drug and alcohol numbers are sky high,” said one tribal member, who wished to remain anonymous in order to be able to speak freely. “There are not a lot of healthy families. There are tons of families that care, but it takes structure, it takes money [to foster], and so many families are overwhelmed with the day to day living, how could they bring another child into their home?”
For the San Carlos Apache Tribe, methamphetamine poses a particular devastating problem. Social services Director Terry Ross said that the reservation currently has an “epidemic of mothers with meth-exposed babies.”
“We try to work with the family, but when mothers are addicted to meth… it’s hard,” Ross said. “We can’t make people do anything. They have to want to change for their child.”
Many tribes offer social services like counseling, parenting classes, detox centers and emergency supplies to American Indian families in need. But representatives from several tribes mentioned that funding is limited and resources are stretched thin, so that American Indian children continue to find themselves in foster care– where many undergo significant trauma and loss of identity when growing up separated from their tribes, communities, and cultures.
A Sense of Belonging
Sandra White Hawk, an enrolled member of the Sicangu Lakota of the Rosebud Sioux Tribe, was adopted into a white missionary family when she was 18 months old in the days before ICWA. The only Indian girl in her community, she grew up with a sense of being “different.”
“My adoptive mother constantly reminded me that no matter what I did, I came from a pagan race whose only hope for redemption was to assimilate to white culture,” wrote White Hawk, now executive director of the First Nations Repatriation Institute, on her website.
White Hawk added that people in her community were ignorant of her culture when she was growing up; they would ask her to do rain dances or give war whoops. Susan Devan Harness, a member of the Confederated Salish and Kootenai Tribes, was also adopted into a non-Indian family at 18 months. Harness said she was called “Squaw Girl” growing up and that she had trouble finding dates in high school because her male classmates’ mothers believed stereotypes that American Indian women were promiscuous– and that dating one would get their sons in trouble.
“I have had privileges,” said Harness of her adoption. “Living in a nice neighborhood, going to college, I have a Master’s Degree…a place at the table. But I have paid a huge price for those privileges."
As part of that price, Harness said she was always fighting for a place of belonging, and that many adoptees exist in an “in between place” between their tribal communities and their adoptive families. White Hawk’s website states that many adult adoptees also show traits of survivors of trauma: anxiety, impulsivity, nightmares, guilt, and unresolved guilt– and that much healing of these issues takes place for adoptees when they reconnect with their tribal identities or “come home.”
“In the beginning I didn’t see the importance of why anyone would want to know my story as an adoptee because I didn’t understand the prevalence,” said White Hawk. “I get it now.”
White Hawk added that reconnecting with her biological family and tribe later in life allowed a “whole new part” of herself to awaken. She sees similar transformations in the adoptees she works with– as does Karen Vigneault, a librarian who uses her research skills to search genealogy records and connect adoptees with their families.
Vigneault said that adoptees face many obstacles back-peddling through their pasts: opening sealed court documents, misspellings in their ancestors’ names or lack of names which makes tracing families difficult, and apprehension at returning to their communities and families decades later. Despite the challenges, Vigneault provides her help to adoptees free from charge.
“If Creator has people asking me for help, I can’t charge them for that,” Vigneault said. “To help them come home… it should be a free ride.”
A 2009 report published by the Annie E Casey Foundation found that resilience– the ability to bounce back after a traumatic or difficult experience– increases dramatically for American Indian individuals who have seven protective factors in their lives, including: a sense of belonging to a culture, spirituality, connections to the tribal language and extended family, a sense of humor, a mindset of forward thinking or “moving forward to the seventh generation,” and what authors Charlotte Goodluck and Angela Willeto describe as “responses from the culture”– which could include beadwork, drumming, sweat lodge, talking circles, smudging, pow wows and other ceremonies.
The association between resilience and strong rootedness in tribal culture have significant implications for American Indian children within the foster care and adoption systems today.
Tania Valdez, associate director of the voluntary treatment foster care program La Familia-Namaste, Inc in New Mexico, described the change she saw occur in a young woman in care when an ICWA worker sent her music and books from her Oklahoma tribe.
“I think it plays a tremendous role in her cultural identity. It’s part of who she is,” Valdez said. “She’s removed from her community, but it gave her a piece of her culture, and she embraced that.”
Nikki Kull, executive vice president of The Ranches in New Mexico, said that children in care struggle to transition from one culture to another, regardless of their race.
“We had some siblings from the Yuni tribe who were very connected to their culture… and it was hard for them to be separated from their culture. It’s heart-breaking to see,” Kull said. “I desperately understand the need for kids to stay within their culture, but the fact remains there aren’t enough homes.”
The Indian Child Welfare Act Today
Several judges who spoke with the Navajo Post said that ICWA was meant to be a gold standard for family law cases– that active efforts to work with families before removing children from their homes would be in the best interest of all children regardless of their race.
But lawsuits in several states– Minnesota, Arizona, Oklahoma and Virginia– challenge the constitutionality of ICWA. Common arguments include that the Act’s language discriminates against American Indian children on race alone and that the Act violates due process and privacy rights guaranteed by the Tenth and Fourteenth Amendments.
Judge Tim Connors, who teaches at the University of Michigan Law School and helps train new judges in handling ICWA cases, said that family law is mainly an issue for state courts, so that applying ICWA– a federal law– to American Indian family cases is a “foreign concept” for many judges. But he added that American Indian children are particularly harmed when removed from their families.
“Data shows the trauma when we separate children from their communities and their culture and their lineages,” Connors said. “And it is particularly harmful for Native American children.”
Judge William Thorne, vice-president of the National Indian Justice Center and a former member of the Board of Trustees for the National Council of Juvenile and Family Court Judges, said that while some judges and lawyers see ICWA as a violation of their code of ethics regarding fairness, ICWA was created with American Indian children’s best interest in mind.
“In tribal communities, if you cut a child off from their family, grandparents, aunts and uncles, cousins, that really is almost active abuse against that child, because in Indian communities things happen based on relationships,” Thorne said in a video produced by the Mississippi Administrative Office of Courts.
Judge Leonard Edwards, a retired judge who served for 26 years as a Superior Court Judge and six years as Judge-in-Residence at the Center for Families, Children & the Courts, stated that the adversarial processes prevalent in courts– where two or more sides argue their cases and then a “winner” is declared– go against traditional American Indian practices of resolving conflict. Edwards said that the intention behind ICWA was to help make sure that all of an American Indian child’s resources were being considered.
“Social workers can be creative,” Edwards said. “It’s not mum and dad, it’s the extended family and community. It’s different [in tribal communities] and that can be difficult for our judges to understand.”
While ICWA has been acknowledged by many judges as a difficult law to understand and implement, tribes across the country insist keeping American Indian children connected to their tribes is of utmost importance.
“[If not] They lose the language, the culture, the integrity of what it is to be Native American and the values system,” said Doris Bailon, director of Social Services of the Santo Domingo Pueblo.
Sandra White Hawk and Susan Devan Harness had a suggestion to reduce the number of American Indian children entering the foster care system: providing “front end services.”
“Instead of the money going to clothe and feed kids in foster care, have that money going to strengthen Native families and communities,” Harness said.
See more about Karen Vignault in the top tabs on this blog - she assists adoptees in their search - Trace