THE LAW
Over 30 years ago, Congress determined that there is nothing “more vital to the continued existence and integrity of Indian tribes than their children.”1
In recognition of this fact, Section 1915 of ICWA mandates that every effort must be made to keep Indian children with their parents or with Indian relatives before they may be “placed” in non-Indian child-care institutions or with non-Indian foster parents.
THE REALITY
An alarmingly high percentage of Indian children are placed in non-Indian foster homes and adoptive institutions.2 By age twenty, 60% of these children are dead, homeless, or in prison.3
Nationally, American Indian children are represented in foster care at more than twice their proportions in the census populations.4 In South Dakota, 61% of children in state foster care are Indian, making their representation in state care four times larger than their percentage of the state population as a whole.5
In a survey of over 40 tribal ICWA offices nationally, more than 50% of them identified “placement preferences” violations as a problem when asked to rank the top 3 most serious violations to ICWA in their state.6
THE PROBLEM
Section 1915 of ICWA is not enforceable by law. An oversight by Congress failed to include Section 1915 among those that are enforceable in federal court. This means that families have no legal remedy if they are denied custody of their relative children.
THE SOLUTION
We need to amend ICWA to give us the right to enforce the law, and to give relatives the right to legal action if placement of a relative child with them is unfairly denied.
Amendment to Section 1914 of ICWA (changes in bold)
Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law; any Parent or Indian custodian from whose custody such a child was removed; any individual Indian person to whom custody of such an Indian child was withheld who falls within the definition of an “Indian Person” who is entitled to the “preferred placement” of such an Indian Child; and the Indian child’s tribe, may petition any court of competent jurisdiction, including any federal court having lawful venue over any such action, to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913, 1915 and 1916 of this title. This right of civil action shall be available retroactively to any Indian person whose “right to preferential placement” of such an Indian child provided in this Act was not adequately recognized and given effect by any State Court or State Agency at any time since 1978.
References
Indian Child Welfare Act 25 U.S.C. §1901. (1978).
Ibid.
William Thorne, Judge, Utah Courts. Presentation for annual Conference for the National Child Welfare Association. (21 April 2009)
Hill, Robert. “Synthesis of Research on Disproportionality in Child Welfare: An Update” Casey-CSSP Alliance for Racial Equality in the Child Welfare System. (October 2006)
Adoption and Foster Care Analysis Reporting System. Child Welfare League of American. “Population to In Care Population.” (2006)
Lakota Peoples Law Project. Survey conducted Summer 2009. A full copy of the report is on file at the Rapid City office.
South Dakota Department of Social Services, Child Protection Services. “Report to Tribal ICWA Offices.” (2007)
ICWA Amendment Initiative
THE LAW
Over 30 years ago, Congress determined that there is nothing “more vital to the continued existence and integrity of Indian tribes than their children.”1
In recognition of this fact, Section 1915 of ICWA mandates that every effort must be made to keep Indian children with their parents or with Indian relatives before they may be “placed” in non-Indian child-care institutions or with non-Indian foster parents.
THE REALITY
An alarmingly high percentage of Indian children are placed in non-Indian foster homes and adoptive institutions.2 By age twenty, 60% of these children are dead, homeless, or in prison.3
Nationally, American Indian children are represented in foster care at more than twice their proportions in the census populations.4 In South Dakota, 61% of children in state foster care are Indian, making their representation in state care four times larger than their percentage of the state population as a whole.5
In a survey of over 40 tribal ICWA offices nationally, more than 50% of them identified “placement preferences” violations as a problem when asked to rank the top 3 most serious violations to ICWA in their state.6
THE PROBLEM
Section 1915 of ICWA is not enforceable by law. An oversight by Congress failed to include Section 1915 among those that are enforceable in federal court. This means that families have no legal remedy if they are denied custody of their relative children.
THE SOLUTION
We need to amend ICWA to give us the right to enforce the law, and to give relatives the right to legal action if placement of a relative child with them is unfairly denied.
Amendment to Section 1914 of ICWA (changes in bold)
Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law; any Parent or Indian custodian from whose custody such a child was removed; any individual Indian person to whom custody of such an Indian child was withheld who falls within the definition of an “Indian Person” who is entitled to the “preferred placement” of such an Indian Child; and the Indian child’s tribe, may petition any court of competent jurisdiction, including any federal court having lawful venue over any such action, to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912,
and1913, 1915 and 1916 of this title. This right of civil action shall be available retroactively to any Indian person whose “right to preferential placement” of such an Indian child provided in this Act was not adequately recognized and given effect by any State Court or State Agency at any time since 1978.References
- Indian Child Welfare Act 25 U.S.C. §1901. (1978).
- Ibid.
- William Thorne, Judge, Utah Courts. Presentation for annual Conference for the National Child Welfare Association. (21 April 2009)
- Hill, Robert. “Synthesis of Research on Disproportionality in Child Welfare: An Update” Casey-CSSP Alliance for Racial Equality in the Child Welfare System. (October 2006)
- Adoption and Foster Care Analysis Reporting System. Child Welfare League of American. “Population to In Care Population.” (2006)
- Lakota Peoples Law Project. Survey conducted Summer 2009. A full copy of the report is on file at the Rapid City office.
- South Dakota Department of Social Services, Child Protection Services. “Report to Tribal ICWA Offices.” (2007)