ICWA Implementation Shortfalls
By Jedd Parr, CILS Sacramento Office Directing Attorney
In 1978, the federal government passed the Indian Child Welfare Act in response to wildly disproportionate numbers of Native American children being removed from their parents and placed outside of their families and tribes. Many grew into adulthood with no knowledge of their heritage. Before the ICWA, little regard was given to the long-term impacts on those children and their tribal communities. The ICWA was intended to solve the problem by creating minimum standards for state agencies and courts, seeking to reunify Indian children with their parents if possible, and if not, then to encourage connections between the children and their extended families and tribes.
Forty-two years later, even in a state like California, where several significant pieces of legislation have been passed to implement the law better, numerous problems remain. Too often, the ICWA is poorly understood by some county social service agencies, attorneys representing children in dependency cases, and even the courts themselves. Where the law is better understood, it may still be seen as an unwelcome impediment to the usual course of business – additional legal requirements, additional forms to be filed, tribes to be contacted or to join the cases as parties, extended family members and tribal members to be searched for and evaluated as possible placements. In a system where many counties already feel overloaded, it is not surprising that the ICWA is at times given short shrift.
The heart of the problem is that the purpose of the law is typically not wholly realized or believed. The importance of the connection between Native Americans and their tribes is not something easily understood by non-Indians. As a result, tribes are commonly treated as less than the sovereign governments concerned for their people’s welfare that they are.
Tribes may not be notified at all of a case involving one of their children. They may be denied information about the case due to outdated understandings of confidentiality. They may send a representative to a far-off hearing only to find that the other parties have already agreed to ask for a continuance. Tribal representatives may receive reports of a county’s recommendations for a child on the day of the hearing at which the court is to decide on those recommendations, with no opportunity to evaluate beforehand with the decision-makers of the tribe. They may be ignored when building reunification plans for the parents, or in identifying extended family and tribal member placements preferred under federal and state law. Tribes may be told that arranging visitation with out-of-the-area family and tribal members, in case reunification fails and placement with a non-parent is necessary, is too difficult or expensive. They may later be told, if reunification does not occur, that placement with a family or tribal member is not in the child’s best interests because he or she doesn’t know the family or tribal member well enough, and have instead bonded to the foster family in the local area.
What’s the solution, if these problems persist so many years after the ICWA became law? Information can help. In 2015 the California ICWA Compliance Task Force convened at the invitation of the California Attorney General. Chaired by seven tribal leaders and composed of other tribal representatives and advocates, in 2017 it delivered a detailed report to the Attorney General, which documented ICWA issues throughout the state. It made 20 specific recommendations to help improve implementation. Some of those recommendations have seen progress – for example, the formation of the Office of Tribal Affairs within the California Department of Social Services, or California’s collection of data on ICWA compliance for the federal Adoption and Foster Care Analysis and Reporting System. But others have seen little or no progress.
In the opinion of many tribes, ICWA advocates and practitioners, tribes need to be represented by counsel from the outset in more dependency cases. All other parties – the county, the parents, the children – are provided with attorneys. Doing the same for tribes would help ensure that the ICWA is followed and that the spirit and purpose of the law are finally met.