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March 30, 2017 Articles

The Rights of Indian Children: Indian Child Welfare Act Regulations

By Sheldon Spotted Elk

The Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 et seq., is the “gold standard” of child welfare policy for all children. The law charges that children should be safe, raised within their family, and when that is not possible, raised with relatives within an identity-affirming community. These principles are what children’s attorneys and guardians ad litem advocate for all children. Indeed, these are principles that I would want for my own children.

Previously, I represented the best interests of children involved in dependency proceedings for the Ute Indian Tribe of the Uintah and Ouray Reservation in northeastern Utah. I know from growing up in Indian country “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” 25 U.S.C. § 1901(3). From that knowledge, I worked with determined conviction and involved advocacy for positive outcomes, both in and out of court, for the children I represented.

One particular exhausting day, a tribal elder and mentor took me aside, probably after observing me being overwhelmed and close to burnout because of my inexperience managing a large caseload. The story he shared on that warm spring day has served as paradigm-shifting medicine ever since. The story was the Nuche (Ute) legend about Siats (pronounced se-atch), the cunning monster from the high mountains that would kidnap children from their families. The story was told to me like this:

Long ago, a curious boy was playing near the river against the wishes and warning of his parents. Stalking the boy in the reeds next to the river was Siats, the monster that steals children. As soon as the moment was right, the giant monster sprung out of his hiding place and grabbed the boy and put him in his basket that he carries over his shoulder. Siats, with the boy as his prisoner, commenced the journey to the monster’s home in the high mountains.

Because the journey was much too far for one day, Siats camped with the boy locked inside the basket. All night the boy cried until horned toad, a helper to the Ute, wiggled his way into the basket and asked the little boy why he was crying. The boy said, “I have been taken by Siats. I will never see my family again, hear our beautiful songs in our language, eat our foods, or dance at our Bear Dance, and I will forever be lost.” Horned toad listened with sorrow and cried with the boy in the darkness of the basket.

After some time had passed, horned toad had an idea. Horned toad said to the boy, “Reach down and feel the jagged edges of my prickly head.” After the boy carefully examined the rough edges of the toad in the darkness he responded, “You feel like an arrow head.” Horned toad then explained the plan to the boy. “In the morning when Siats lifts the basket lid to check on you, pick me up as an arrowhead and throw me into the heart of the monster.”

When Siats awoke from his sleep he did as horned toad predicted and lifted the lid to the basket. The kidnapped child rose courageously with the arrow-headed helper in his hand and killed the beast with a mighty throw. The boy was then able to escape back to his people—the Nuche.

The healing and redemptive medicine of this story is to become like the helper horned toad and be a tool in the hand of a child to help a child and family to safety.

For me, my practice (or ideas as to best interests) changed to the “horned toad” principles of ensuring my child clients had connection to their resilient identities as human beings needing safety, family, relatives, and community connections—after all, Nuche fundamentally means “the people” or the human beings.

Today the term siats is used in a different connotation in the Ute tribal community. The term also refers to child welfare workers, attorneys, and judges who remove children from families. The Ute Tribe is similar to many, if not all, tribal communities where American Indian families experienced the systemic removal of their children through federal policies, churches, boarding schools, child welfare organizations, and foster care bureaucracies in the name of assimilation, or to make life “better” for these children. Biased views and practices persist, and children are “stolen” in that they are removed.

This systemic removal was so prevalent that before ICWA’s passage in 1978, Congress found between 25 to 35 percent of all Indian children nationwide were removed from their homes and 90 percent of those children were placed into non-Indian homes. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32–33 (1989). ICWA was enacted to combat this “wholesale removal of Indian children from their homes” and continues today as the policy that “protect[s] the best interests of Indian children” and “to promote the stability and security of Indian tribes and families.” Holyfield, 490 U.S. at 32, 56 n.2. ICWA’s relevance is especially timely now, when the American Indian and Alaskan Natives (AIAN) rate in foster care is 2.4 times the rate of the general population; in at least seven state jurisdictions, the AIAN foster care rate is four times the general population. Alicia Summers, Nat’l Council of Juvenile and Family Court Judges, Disproportionality Rates for Children of Color in Foster Care (Fiscal Year 2014) (2016). Reports are that the AIAN rate is on the rise nationally.

To “promote nationwide uniformity and provide[] clarity to the minimum Federal standards established by [ICWA],” the Department of the Interior through the Bureau of Indian Affairs (BIA) promulgated ICWA regulations (final rule) to “address[] requirements for State courts in ensuring implementation of ICWA in Indian child-welfare proceedings.” Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,778–79 (June 14, 2016). The final rule went into effect on December 12, 2016. The BIA hosted listening sessions in the spring of 2015 and received thousands of public comments, online and in person, three times more than any other rule the BIA has ever published. Suzette Brewer, “Breaking: BIA Publishes Final ICWA Rule,” Indian Country Media Network (June 8, 2016).

“In many instances, the standards in this final rule reflect State interpretations and best practices, as reflected in State court decisions, State laws implementing ICWA, or State guidance documents.” 81 Fed. Reg. at 38,779. Notwithstanding the regulations, a number of states have passed additional ICWA laws to provide more protection to Indian children and families that may address gaps between the federal law and state process and state child welfare agency practices.

“ICWA balances the Federal interest in protecting the integrity of Indian families and the sovereign authority of Indian Tribes with the States’ sovereign interest in child-welfare matters.” 81 Fed. Reg. at 38,789. The balance between the sovereigns of our democratic republic—federal, state, and tribal interests—in ICWA may arguably serve as the highest in the principles of federal Indian law. Those principles being: tribal sovereignty, limited state authority over tribes, and the federal trust relationship with tribes. Moreover, ICWA also can be seen as a manifestation of the values of international law in children’s rights and the rights of indigenous peoples.

ICWA is the “horned toad” principle of providing “active efforts” to prevent a child from being removed from his or her natural family, except when there is no alternative to safely keep the child in the home. When a removal does occur, ICWA mandates looking first to relatives and kin for placement, rather than stranger foster care.

The rest of this article will focus on only limited provisions within the ICWA regulations to strengthen the “gold standard” for keeping children with family, with relatives, and in communities.

Children with Families
For all children, a removal from home can create separation from not only parents, but also an extended network of resilient relations. Oftentimes in tribal families there are multiple relations who create a protective attachment for a child. There is no dispute an abusive environment is harmful to child development. However, those children on the edge of being removed may be served as a matter of a child’s right through family preservation efforts rather than child protection removal. Joseph J. Doyle Jr., “Child Protection and Child Outcomes: Measuring the Effect of Foster Care,” 97 Am. Econ. Rev. 1583 (2007).

In recognition of the value of the preference of children being raised with their natural families, ICWA requires that “active efforts” are documented and legal findings are made before any foster care or termination of parental rights “to prevent the breakup of the Indian family.” 25 U.S.C. § 1912(d). The regulations provide 11 new examples of “active efforts” that should be tailored to each unique case in “partnership with the Indian child and the Indian child’s parents, extended family members, Indian custodians, and Tribe.” 25 C.F.R. § 23.2.

While the regulations do not pronounce that “active efforts” are more than “reasonable efforts,” regulations do affirm that “active” is not passive or noninvolved in the case. 81 Fed. Reg. at 38,790–92. The clarification as to “active efforts” makes clear that families are entitled to involved advocacy to support their reunification.

Tribal notice and involvement as early as possible is a mechanism to get “all available hands on deck.” When active efforts have failed or emergency proceedings have been initiated because of immediate threat to the safety of the child, the tribe(s) must receive timely notice to the legal proceedings. The regulations explicitly permit the use of certified mail, rather than exclusively registered mail, and require that notice is sent for separate proceedings (e.g., placement into foster care and termination of parental rights). Tribes’ capacity to intervene and engage in proceedings varies greatly, and some tribes may have protocols to intervene only at specific or critical stages, so notice at each stage is critical.

Children with Relatives
International law provides context for children being raised with their people as a right. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) recognizes that indigenous communities “retain shared responsibilities for the upbringing, training, education and well-being of their children, consistent with the rights of the child.” UNDRIP was endorsed by the United States in 2011, and while the United Nations Convention on the Rights of the Child (UNCRC) was signed in 1995, it has never been ratified by Congress. While not legally controlling, the international legal provisions are recognized as a standard for children’s rights. ICWA is correlative to UNDRIP and UNCRC regarding the children’s provisions and rights of indigenous peoples’ freedom to being raised within a culturally affirming environment.

The rights of an Indian child, under the ICWA regulations, are to have a placement that “(1) [m]ost approximates a family, taking into consideration sibling attachment; (2) [a]llows the Indian child’s special needs (if any) to be met; and (3) [i]s in reasonable proximity to the Indian child’s home, extended family, or siblings.” 25 C.F.R. § 23.131(a). Together with Congress’s goal of the placement of Indian children in homes “which will reflect the unique values of Indian culture,” children should be raised in the fertile soil of an affirming environment.

The “good cause” to deviate from the placement preferences is based on one of the following: request of one or both of the parents after they have reviewed the preferences; request of a child of sufficient age; sibling attachment; extraordinary needs of the Indian child; and the unavailability of a suitable placement after a determination by the court that a diligent search was conducted. 25 C.F.R. § 23.132(c).

An Indian child’s best interests are protected through the placement preferences of ICWA. The principles of family, relatives, and community are “consistent with the guiding principle established by most States for determining the best interests of the child”: preserving family integrity and avoiding removal. 81 Fed. Reg. at 38,797.

Children in Communities
Tribal governments have the rights to make their own laws and be governed by them, including determining membership, domestic relations, and inheritance. An Indian child has a right to culture, tribal citizenship, and identity, and as an extension, a right to community. ICWA is clear that a tribe shall determine an Indian child’s tribal membership.

Under ICWA, when tribal children are domiciled in state land when entering the dependency system, tribes exercise concurrent jurisdiction of state child welfare cases. The tribe, parent, or Indian custodian involved in a child custody proceeding may request the case be transferred to tribal court “in the absence of good cause to the contrary.” 25 U.S.C. § 1911(b). The ICWA regulations do not define “good cause to the contrary” but do provide guidance to what it is not. The court may not consider any of the following factors: whether the case is at an “advanced stage” if notice was not received until the case was at an advanced stage; whether the petition to transfer was made in an earlier proceeding; whether transfer could affect the placement for the child; the child’s cultural connections with the tribe or reservation; and socioeconomic conditions or perceived adequacy of the tribal court. 25 C.F.R. § 23.118.

The tribe I worked for decided to “bring the children home” through a focus on children in their community and ensuring resources to support that work. Many strategies were employed, depending on case specifics. Ensuring the tribal children were closer to home, both in proximity and culturally, was the goal. Some cases achieved the goal through reunification with the natural parents, others by placement within kinship care from stranger foster care. One of the primary practices was the transfer of cases to tribal court when the parents were amenable. In the end we brought all but one child back into tribal custody with an over 75 percent kinship placement rate.

One of the children brought home was “Victor.” When I met Victor, he had been in the foster system for many years, hundreds of miles from his tribal community in a non-Indian home. He had been disconnected from his community so long it had clear effects on his view of himself, as I heard him say disparaging things about his tribal identity and he choose to self-identify as an different ethnic group altogether. Through great social work and thoughtful court decisions, we began to make contacts with his family in the tribal community. After several short visits and then a trial placement, he wanted to be placed back with his relatives.

Victor became the authentication of the “horned toad” principles, and I witnessed the evidence of the connective resiliency of family, relatives, and community. During one of his visits, I brought Victor to a sweat lodge ceremony in his community. The man running the lodge happened to be a relative he had never met, and Victor’s newfound uncle took a special interest in teaching Victor in detail about the process of the ceremony. That day I sat and sang with them in the darkness of the lodge, the drum beat seemed to reunify Victor back to his land, people, culture, and history. I observed his rebirth and beginning of his journey on the road to healing and life. Horned toad whispers to us, rise up and be courageous when a child is involved.

I agreed to write this article so that you may remember the horned toad and his strategy and planning to defeat Siats to get the boy back to his family, relatives, and community. ICWA can produce successful outcomes, protect the rights of children, and importantly stands as hope, resiliency, and healing for our Indian children and families.


Sheldon Spotted Elk is a director in the Indian Child Welfare Unit at Casey Family Programs in Denver, Colorado.

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