In the late 1960s, while employed by the Association on American Indian Affairs (AAIA), a New York-based attorney named Bertram Hirsch was sent to North Dakota to assist with a kinship dispute case on behalf of the Spirit Lake Tribe. Child welfare workers were forcibly removing children from family members and placing them in white homes, sometimes out of state. One grandmother had even been jailed after refusing to give up her grandchildren.
At the time, Hirsch says, he had no idea that an alarming number of American Indian children were being taken from their families and permanently placed in homes with white parents.
But as he worked on the Spirit Lake case, he began to understand the scope of the problem. And by the time 1969 rolled around, he and the AAIA were deeply engaged in a nationwide data collection project that had him contacting every foster care or adoption agency and institution he could find. He surveyed the Bureau of Indian Affairs, which had the authority to place children at that time, and state social services departments as well as juvenile probation facilities.
Hirsch’s research found that somewhere between 25 and 35 percent of all American Indian children had been placed in adoptive homes, foster homes or institutions. Around 90 percent of those children were being raised by non-Indians. Many would never see their biological families again.
By the end of 1978, Hirsch had conducted his audit twice. Congressional commissions had convened in Washington numerous times, gathering hundreds of hours of testimony on the government’s egregious treatment of American Indian communities. In its report to Congress, a task force said, “The removal of Indian children from their natural homes and tribal setting has been and continues to be a national crisis.”
The government-sanctioned removals were a wound for Native families and tribes that would be torn raw with each new generation.
Hirsch, along with two Congressional staffers, wrote and rewrote a bill to shield American Indian youth from being removed from their families and tribes. A culmination of what Hirsch describes as a huge grassroots effort spanning 11 years and involving thousands of people across the country, the Indian Child Welfare Act (ICWA) was passed at the 11th hour, just before the 95th Congress would come to a close, on October 24, 1978.
“If we didn’t get it passed in the 95th,” Hirsch said, “I’m not sure it ever would have passed.”
ICWA defined the political relationship between two sovereigns – tribes and states. It designated that tribes can and must act as parents for their children, just as states do with non-Native children, when biological parents cannot. And it required that preference be given to tribal communities when children must be removed from their homes.
But 40 years later, states still don’t fully understand ICWA. One judge described ICWA as the most ignored federal law in the history of this country.
The federal government has no ICWA data reporting requirements in place.Caseworkers and attorneys have been reported as viewing ICWA compliance as optional. Notice to tribes that an Indian child has entered foster care has been delayed by as many as four years, tribes have said.
And just last week, a federal district court judge ruled that the law was unconstitutional, rendering the fate of ICWA uncertain.
Making the Case for ICWA
The movement that in some ways led to the passage of ICWA began in the 1960s, when President John F. Kennedy took office and federal policy related to American Indians shifted away from termination and toward self-determination. The American Indian Movement (AIM) was one of the more visible groups advocating for self-determination. AIM alerted the public to its views of the many injustices American Indians were suffering by occupying various well-known and symbolic locales, including Wounded Knee, Alcatraz, the Mayflower replica in Boston, Mt. Rushmore, and the Bureau of Indian Affairs office in Washington, D.C.
Political activity by tribal members and a handful of new federal laws related to American Indian affairs, combined with data collected by Association on American Indian Affairs, had Congress concerned about this latest iteration of America’s “Indian problem.”
In the mid-1970s, Congress created the American Indian Policy Review Commission, a board co-chaired by Sen. James Abourezk (D-S.D.) which included seven tribal members. It was charged with compiling a report of its “findings and recommendations in some of the major areas of current jurisdictional conflict.”
After 28 days of hearings, collecting input and testimony from 90 different tribes, a final report was released in 1976 and spanned a range of issues including hunting and fishing rights, land use, taxation, jurisdiction, child custody and civil rights.
The report’s section on child custody clearly outlines what still lies at the heart of many advocates’ concerns about child welfare practices when it comes to American Indian kids. Quoting a case Hirsch had argued in New Mexico involving a Navajo child, the report said:
“Child rearing and the maintenance of tribal identity are ‘essential tribal relations’ [citation omitted]. By paralyzing the ability of the tribe to perpetuate itself, the intrusion of a State in family relationships within the Navaho [sic] Nation and interference with a child’s ethnic identity with the tribe of his birth are ultimately the most severe methods of undermining retained tribal sovereignty and autonomy.”
Abourezk, a member of Congress who would see at least six of his bills related to American Indians become law, grew up near the Rosebud reservation in South Dakota. In 1968, 40 percent of the adoptions that took place in Abourezk’s home state involved Native families, even though Native children only made up 7 percent of the population.
When asked why he took an interest in tribal issues, Abourezk, who is now 87, said, “Those kids were my playmates. A friend helped me see that that was my responsibility. We have an obligation to do right by them.”
A Different Kind of Termination
In the 1970s, the federally funded Indian Health Service performed involuntary sterilization on over 3,000 American Indian women, according to the U.S. General Accounting Office.
Researchers later found that government-sponsored health care for American Indians had an ominous origin story. It was born of the War Department in the 1830s and would be transferred to what was then called Public Health Service in the 1950s. At that time, the notion that Indians, and people of color generally, were inferior to white people was pervasive. Sterilization was one way to solve America’s problem of a growing population of “minorities.”
The average birth rate across tribes dropped from 3.29 in 1970 to 1.30 in 1980. Fewer Native children were being born, and a third of them were being taken away from their tribes.
In 1969, white born-again Christians founded a rescue mission focused largely on American Indian children in and near Tucson, Arizona. House of Samuel, as it was called, dispatched its staff (and founders) to remote reservations in the nearby desert plains or the unforgiving mountains to “offer assistance” to new unwed mothers or those with multiple children and no means.
Some women sent their children to House of Samuel out of desperation, believing they would get their children back. Often they were told it was in the child’s best interests to let them live with a white family.
In 1975, tribal court judge Anna Early Goseyun was so outraged by what was happening to her community’s children that she led a raid on House of Samuel. Her goal was to bring the Apache children home.
“People call me militant and communistic,” Goseyun told the Arizona Daily Star in 1977. “But you have to be a little militant to change things.”
The Navajo Nation and the White Mountain Apache Tribe later hired Hirsch, of the AAIA, to represent the tribes in a lawsuit alleging that House of Samuel was kidnapping children from reservations and unlawfully terminating parental rights for the purpose of adoption. Hirsch and his team brought in members of the community to testify. Not to dispute whether the children in question should have been removed from their biological parents – it was clear that they should – but to show that, even with removal, the children still had fit parents.
Many tribes, including the Navajo and Apache, believe that children are the responsibility of the tribe as a whole. Under tribal customary law, the individuals who created a child are not the only parents; caregiving and responsibility for the child’s well-being extends to aunts and uncles, family friends and grandparents. In fact, Hirsch said, in both Apache and Navajo, the word for mother is the same as the word for aunt; the word for father is the same as the word for uncle. Elders relayed this to the Pima County court in their native language.
In the end, Hirsch said, the tribes prevailed. The judge ruled that at least one of the children was not eligible for adoption because they already had parents. But more importantly, according to Hirsch, is the fact that House of Samuel’s practice of taking children was not an aberration.
“It was very common for non-Indian folks to cruise reservations, or communities bordering reservations, and just take kids. Then, when the parents wanted to get their kids back, they would run to state court to try to get guardianship or terminate parental rights,” he said.
Today, House of Samuel operates under the name Alliance for Children Everywhere in Guatemala, Peru and Zambia with its founder still at the helm.
The Promise of ICWA
One of the intentions of ICWA was to confirm, by statute, that tribes stand in parens patriae relationships to their children. This was a legal recognition that tribes act as parents.
ICWA was also an acknowledgment, by the United States government, of the numerous battles for the dignity of Native communities that came before it as well as a commitment to do better by tribes and Indian families.
But the promise of ICWA itself has yet to truly be fulfilled. The law has been under assault by challenges from private adoption attorneys as well as a conservative think-tank called The Goldwater Institute, which has filed nearly a dozen separate lawsuits challenging ICWA.
The irony is that Barry Goldwater, after whom the institute was named, voted in favor of ICWA, a point that former Sen. Abourezk made very clear in a statement to the National Indian Child Welfare Association:
“I knew Barry Goldwater – he was my friend and often came to me for advice on most tribal matters. I wish he were alive to see this travesty because he would never approve of [the current attacks on ICWA] and you can quote me on that and make sure you emphasize the word ‘never.’”
Meanwhile, 40 years after ICWA’s passage, the federal government still does not collect the type of data that would help gauge the law’s actual impact. ICWA-related data was finally included in a 2016 plan to update the Adoption and Foster Care Analysis and Reporting System (AFCARS), but the Trump administration has delayed that plan and some states are lobbying to roll back the ICWA elements.
“Many of the states with more tribal communities have added ICWA elements to their systems, but each is a bit different without the unifying effect of a national standard like AFCARS. Some states are not collecting ICWA data at all,” said Scott Trowbridge, a staff attorney for the American Bar Association, in an email to The Imprint.
Without data, it is difficult to definitively measure compliance.
In 2015, Casey Family Programs investigated ICWA compliance across the country. It found that AI/AN children were still in foster care at twice the rate of their peers, on average. The brief Casey produced pointed out that, without federal oversight, states and other jurisdictions have been left to interpret ICWA’s provisions and definitions on their own, resulting in inconsistent implementation of the law.
The organization dedicated to the spirit of the law, the National Indian Child Welfare Association, or NICWA, does its best to monitor ICWA compliance and to educate states and youth services workers on its nuances. But the lack of data limits what NICWA, legislators and tribal leaders can do to help states better serve Native children and tribes.
“I think the key to successful implementation of ICWA is data and the use of it to correct deficiencies,” said David Simmons, policy director at NICWA. “We have never had good ICWA data. The federal agencies that should be collecting data, such as BIA and DHHS [Health and Human Services], don’t and have not done enough to help states improve their ICWA practice.”
Disproportionality might be the greatest indicator that implementation deficiencies persist. The National Council on Juvenile and Family Court Judges released a brief that showed disproportionality of AI/AN kids in foster care trending up from 2000 to 2014, particularly after 2010. The states with the highest rates of disproportionality, as of 2014, were Minnesota, Nebraska, Idaho, Iowa and Wisconsin.
Are Families Better Off?
Everyone asked for this article whether families have been helped by ICWA had the same answer: “Yes, but …”
While Abourezk thinks American Indian families are better protected from unnecessary removals overall, he says there’s still a good amount of pushback from states around ICWA. Abourezk went on to work as an attorney for tribes after his time in the Senate, and today he lives in South Dakota, where Native kids are about three times more likely to be placed in foster care than white kids.
“There’s still a lot of suffering on reservations, and mean treatment by governments, but it’s been cut down by ICWA,” he said.
Gary Peterson of the Skokomish Tribe just outside Olympic National Park in Washington, and founding board member of the National Indian Child Welfare Association, sees it a little bit differently.
“There are many, many families or individuals who have found their way back to the tribe through the passage of the Act,” Peterson said. “The provision that allows them to unseal their adoption records helps them find the history of their adoption, and this gives them clues about where they came from. It has enabled children to find their way back to the community.”
But problems with fidelity to the law’s protections continue. Peterson spent five years during his tenure as chairman of the Skokomish Tribe developing a state-tribal partnership around ICWA. It resulted in a signed agreement in 1987 between the state and 22 of Washington’s 29 tribes as well as a step-by-step manual for handling ICWA cases.
Today, that manual no longer exists and the agreement has been abandoned.
“We’re still losing our kids. I think [the state is] more aware of [ICWA] but they don’t view it as good social work practice, and they don’t try to do the right thing for Indian families and kids. It’s very disappointing,” Peterson said.
If you are interested in reading more about federal child welfare and juvenile justice policy, read our annual special issue “Kids on the Hill: A Special Issue on Child Welfare Policy” by clicking here!