Legislative History

 

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Legislative history for

THE INDIAN CHILD WELFARE ACT OF 1978 (ICWA)

PUBLIC LAW 95-608, 25 USC Chapter 21

 

“ICWA’s principal legislative history consists of the text of various Indian child welfare bills, transcripts of hearings held on them, committee reports issued about them, and floor statements and debate concerning them. Justice Scalia’s complaints about legislative history notwithstanding [see, e.g., Crosby v. National Foreign Trade Council, 530 U.S. 363, 388-91 (2000) (Scalia, J., concurring in the judgment)], these materials are particularly useful when the issue is whether Congress intended ICWA to apply to a particular situation or not. If several witnesses complained at ICWA hearings about a specific problem, for example, it is easier to read ICWA as applying to that problem; on the other hand, if reports and hearings and sponsor statements are completely silent about an issue, it is easier to argue that ICWA doesn’t apply. Over the years, the Alaska Supreme Court has examined and interpreted ICWA’s legislative history in about 13 of its decisions.” – ALSC

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While Concurring with Facts, the Conclusions Reached and Presented by Honorable Chief Judge B.J. Jones in the following Article are not necessrily those of the CAICW Advisory Board. They are Presented Here for Historical Education and Research Purposes.

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OVERVIEW OF THE INDIAN CHILD WELFARE ACT

By HONORABLE BJ JONES **– CHIEF JUDGE PRAIRIE ISLAND INDIAN COMMUNITY TRIBALCOURT, SISSETON-WAHPETON OYATE COURT, DIRECTOR- TRIBAL JUDICIAL INSTITUTE, UNIVERSITY OF NORTH DAKOTA SCHOOL OF LAW.

Accessed Online Aprl 29, 2007, at http://www2.mnbar.org/sections/children/history.pdf

Highlights are not part of the Original Document. All Bold Lettering has been added by this editor.

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“American Indian children occupy a unique status in the American and Minnesota legal system. They are citizens of three separate political entities-the United States, the state of Minnesota, and lastly, the Indian tribe to which they enjoy membership. Because the Indian tribes to which they belong maintain a distinctive political relationship with the United States government Indian children are oftentimes the subject of distinct federal laws that apply exclusively to Indian people. Yet, as Minnesota citizens, they are entitled to the same privileges and protections as non- Indian children under state law, especially with regard to the various programs operated by state and county governments pursuant to federal mandates. When Indian children reside on one of the many Indian reservations and Indian lands throughout the state, yet another layer of law-tribal law-may determine their rights and obligations.

“One of the unique laws that the United States enacted to preserve the rights of Indian children is the Indian Child Welfare Act (hereinafter referred to as ICWA). On November 8, 1978, Congress passed the Indian Child Welfare Act (ICWA) in response to the “rising concern…over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption and foster care placement” (Mississippi Band of Choctaw Indians v.
Holyfield, 1989
). By limiting states’ powers over Indian children, ICWA aims to support Indian families, specifically by maintaining Indian children with Indian caregivers, while honoring a rich cultural tradition and tribal sovereignty.

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” To understand why the United States Congress enacted the Indian Child Welfare Act for the benefit of Indian children and Tribes necessitates an examination of how Indian children and families have been treated by the federal and state governments. By examining this history the reader will better understand the importance of the law to Indian families and tribes and why its implementation is so crucial to the survival of Indian families and tribes. This review will hopefully also lay some historical foundation for the report that follows. Even though the Indian Child Welfare Act has been binding upon state courts in since 1978, the numbers of Indian children in state care remain alarmingly high. State and Tribal cooperation are essential to achieve compliance with the ICWA. The historical discussion herein will examine why these discussions are necessary and why Indian tribes have not been given the resources to enable them to perform the various functions that the ICWA charges them with.

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A. Native Children and Federal Policy

“American Indian children have been the legal targets of a multiplicity of notions and ideas promoted by policy makers with conflicting agendas regarding their “best interests.” In the late 1800’s federal policy makers targeted Indian children as the agents of change in an era when Indian people were perceived of as “savages” who needed to be rehabilitated and Christianized in order to survive in an increasingly dominant non-Indian society.(1) Transforming Indian children was perceived of as the key to Indian survival in that dominant society and as a result they were
oftentimes removed from their parents and placed in boarding schools where they were denied the right to speak their native languages, practice their spiritual beliefs, or even adhere to their traditional grooming and attire. (2)

“Because they were oftentimes the legal guinea pigs for an assortment of notions regarding the future of Indian tribes and their people, a wealth of unique laws and policies flowered simultaneously with their upbringing. Probably never before in this country has there been such a concerted effort to transform a group of people by legally manipulating their children. (3)  Contemporary Indian children are the survivors of these policies of cultural degradation. Understanding this history of federal policy toward Indian children is imperative to appreciating why a law such as the ICWA exists. Congress, when it enacted the ICWA, recognized that Indian tribes should determine the destiny of their children and has passed several laws designed to protect this tribal prerogative. (4)

“Ironically, Indian self-determination has not always been kind to Indian children, however. Tribal self-determination became of vogue in the late 1960’s and early 1970’s when Congress passed a variety of federal laws that recognized the inherent sovereign rights of Indian nations to determine their own laws and be governed by them. Congress was also turning over federal programs, including social service, education and health programs impacting Indian children, directly to Indian tribes to permit them to operate them. These laws, especially the ones directly benefiting
Indian children, undoubtedly promote the best interest of Indian children by permitting Indian tribes to determine the values important to Indian families without interference. However, Indian tribes, despite the consideration paid to them by federal legislators who recognize their sovereign status, have never been treated by the federal government similarly to the other semi-sovereign political
entities-state governments. At the same time that Congress was promoting Indian self-determination, it was also crafting the “Great Society”- an effort to legislatively provide for the basic needs of all Americans, but especially children, through a system of federal grants to state governments which would be utilized to operate programs to assist children who were deprived of the support of their parents and who needed medical services. Accessing these programs, for Indian children, is just as important as being the beneficiaries of special federal laws designed only for Indian children. (5)

“Minnesota and the Indian tribes in the State must therefore work cooperatively to provide for the welfare of Indian children. Tribes may have jurisdiction over Indian children, but this jurisdiction does not always mean that Tribes can access the necessary funding to provide for their children. This is especially evident in the area of child welfare where the primary funding source to provide for neglected or abused children- Title IV-E of the Social Security Act- is only available to state governments for those children in state or county custody. This is true despite the acknowledgment in the Indian Child Welfare Act, at 25 USC §1931, that Indian children placed by Indian tribes should be entitled to all benefits provided under federal and state law.

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B. HISTORY OF INDIAN CHILD WELFARE ACT

This historical legacy of the treatment of Indian families laid the foundation for the passage of the Indian Child Welfare Act. By the spring of 1974, the separation of Indian children from their tribes had become a national “crisis of massive proportion”. As a result, the Senate Subcommittee on Indian Affairs conducted extensive oversight hearings to address the tribes’ concerns about the loss of their children. Those hearings produced overwhelming evidence substantiating the palpable harm inflicted on Indian children, their families and tribes by agency practices. One study, for example, revealed that 25 to 35% of all Indian children had been separated from their families and placed in adoptive families, foster care or institutions. Of those placed in foster or adoptive homes, about 85% were placed with white families.

As reported by the House:

Surveys of States with large Indian populations conducted by the Association on American Indian Affairs (AAIA) in 1969 and again in 1974 indicate that approximately 25-35 percent of all Indian children are separated from their families and placed in foster homes, adoptive
homes, or institutions.

* * *

In addition to the trauma of separation from their families, most Indian children in placement or in institutions have to cope with the problems of adjusting to a social and

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cultural environment much different than their own. In 16 States surveyed in 1969, approximately 85 percent of all Indian children in foster care were living in non-Indian homes.

* * *

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It is clear then that the Indian child welfare crisis is of massive proportions and that Indian families face vastly greater risks of involuntary separation than are typical of our society as a whole.

Subsequent hearings were held in 1977 and 1978 on the bill that became the Indian Child Welfare Act. At these hearings there was considerable focus on the destructive effect on tribes as a result of the “massive removal of their children”. Mr. Calvin Isaac, Tribal Chief of the Mississippi Band of Choctaw Indians and representative of the National Tribal Chairmen’s Association, spoke on the destructive effect on tribal survival and tribal sovereignty.

“Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People. Furthermore, these practices seriously undercut the tribes’ ability to continue as self-governing communities. Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.”

This sentiment was echoed on the congressional floor debate on the bill that was to become the ICWA: “Indian tribes and Indian people are being drained of their children and, as a result, their future as a tribe and a people is being placed in jeopardy” (Congressman Udall); and “This bill is directed at conditions which . . . threaten . . . the future of American Indian tribes” (Congressman Lagomarsino).

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Indian tribes in South and North Dakota, as well as legislators from South Dakota, were particularly involved in promoting the passage of the Indian Child Welfare Act. From 1969 through 1974, AAIA, acting at the request of the Devil’s Lake Sioux Tribe (now known as the Spirit Lake Tribe) and the Sisseton-Wahpeton Oyate, conducted nationwide studies on the impact of state child welfare practices toward American Indian children. AAIA research indicated that 25-35% of all Indian children were placed in either foster homes, adoptive homes, or institutions. The decision to remove these children from their natural families was often a product of state child welfare agents’ lack of understanding of American Indian culture and child-rearing practices (Hollinger, 1992; U.S. House Report 1978).

The AAIA study also produced multiple findings that reflected the severity of the problem of Indian children in substitute care. For example, in Minnesota Indian children were five times more likely to be placed in foster care compared to non-Indian children, while in Montana Indian children were 13 times more likely to be placed compared to non-Indian children. In South Dakota, between 1967 and 1974, Indian children were the subject of 40% of the states adoptions, yet Indian children comprised only seven percent of the juvenile population. Also, foster care placements of Indian children were 16 times that of non-Indian children in South Dakota. Unfortunately, in South Dakota the numbers of Indian children being placed by the State DSS have not decreased that dramatically (Indian persons represent 8% of the population, yet represent over 60% of children in

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DSS custody). In Washington, the adoption rate of Indian children was 19 times that of non-Indians, while the foster care placement was ten times that of non- Indian children.

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A survey of 16 states in 1969 also revealed that approximately 85% of Indian children in foster homes and 90% of non-relative Indian adoptees were living with non-Indian families (U.S. House Report, 1978). The results of this survey troubled tribes for a variety of reasons. First, the placement of so many Indian children in non-Indian homes threatened the extinction of the tribes. In short, tribes were losing the most basic necessity for survival-a next generation. Second, the
alienation of Indian children from their unique tribal cultures and values resulted in the development of maladaptive behaviors such as antisocial behavior, depression and suicide among alarming numbers of Indian children, as reflected in the 1974 AAIA report.

In 1974 Congress initiated its first hearing on the state of Indian children in substitute care.

During testimony before the subcommittee, William Byler, then executive director of AAIA, commented on the statistical evidence uncovered by AAIA, stating the comparatively high rate of outplacement for Indian children was “the most tragic aspect of Indian life today” (S. Rep. No. 597, 95th Cong., 1st Sess. 11 (1977).

The testimony in 1974 also provided the first official acknowledgement by the United States government that the unwarranted removal of Indian children from their families represented a systematic attempt to destroy native tribes and cultures that resulted in negative outcomes for both tribes and tribal children. In his opening statement, South Dakota Senator Abourezk, the chairman of the subcommittee, noted that the placement of “Indian children in non-Indian settings” resulted in “their Indian culture, their Indian traditions, and, in general, their entire way of life…being smothered” (93rd Cong. 2d Sess. 1, 3 (1974). Sen. Abourezk continued by declaring that this loss “strike[s] at the heart of Indian communities” and had been called “cultural genocide” (93rd Cong. 2d Sess. 1, 3 (1974).

Four years later, ICWA was signed into law and is regarded as the most significant piece of legislation affecting American Indian families passed by the United States Congress (Plantz et al., 1989). The Act states:

There is no resource that is more vital to the continued existence And integrity of American Indian tribes that their children…and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions. The states…

have often failed to recognize the essential tribal relations of Indian people and the culture and social standards prevailing in Indian communities and families. It is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families… (ICWA of 1978, 25 U.S.C. Sec.1901, 1902).

The ICWA establishes minimum federal jurisdictional, procedural and substantive standards aimed to achieve a dual purpose:

(1) to protect Indian children and families; and

(2) to stabilize and foster tribal existence.[45]

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The discussion that follows will provide a broad overview of the Indian Child Welfare Act and discuss developments in the implementation of the Indian Child Welfare Act since its enactment.

There are both procedural and substantive provisions of the Indian Child Welfare Act. Both are designed to accomplish three primary objectives:

1) to eliminate the need to remove Indian children from their families, both nuclear and extended, because of cultural bias and ignorance;

2) to assure that Indian children that need to be removed for their own protection be placed in foster and adoptive homes that reflect their unique cultures and background ; and

3) to encourage tribal court adjudication of child custody proceedings involving Indian children.

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The ICWA applies to state court “child custody proceedings” involving “Indian children.”

A
child custody proceeding under the Indian Child Welfare Act is defined as a foster care placement, termination of parental rights proceeding, preadoptive placement or adoptive placement of an Indian child. The ICWA does not apply to custody disputes between parents, either as part of a divorce or
non-divorce proceeding, nor does it apply to delinquency proceedings involving Indian children who commit acts that would be criminal if committed by an adult.
It is important to note that the child custody proceeding need not involve some state action, such as the removal of an Indian child by a state or county child protection entity, in order for ICWA to apply. The ICWA applies to private placements and adoptions as well as those initiated by state and county agencies.

An Indian child is defined under the federal law as an unmarried child under eighteen who is a member of a federally-recognized Indian tribe or eligible for membership in a federallyrecognized Tribe and the natural child of a member of an Indian tribe. Indian tribes, under the ICWA, are given the right to determine their own membership and a state court must defer to a tribal determination of membership. In any child custody proceeding in state court where a party believes or has reason to believe that the child involved is an Indian child there is an affirmative obligation on the part of all parties, and their attorneys, to report such to the Court so that notice may be given to the Indian child’s tribe. Some courts have carved out an exception to the definition of Indian child, commonly referred to as the existing Indian family exception, and held that the Act should not apply to an otherwise qualified Indian child who has not lived with an Indian family
or with an Indian family with few or no ties to an Indian tribe. The language of the Act does not support such an exception, but these Courts have asserted that such an exception is consistent with the legislative history of the Act. Other courts and commentators have strongly criticized this exception and some state legislatures have taken action to repeal the judicially-created exception.

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The procedural requirements of the Indian Child Welfare Act are contained generally at 25 U.S.C. 1911 and 1912. 1911 distinguishes between the jurisdiction of state and tribal courts in child custody proceedings involving Indian children. Indian tribal courts are given exclusive jurisdiction over child custody proceedings involving Indian children domiciled on Indian reservations or whom
are wards of tribal courts. This rule applies in all states, except states commonly referred to as Public Law 280 states which were given civil jurisdiction over Indian reservations. In those states,
the state courts may exercise concurrent jurisdiction, along with tribal courts, over child custody
proceedings involving Indian children. For Indian children domiciled off reservations, state courts
can exercise jurisdiction over child custody proceedings but the exercise of that jurisdiction is

subject to a transfer of jurisdiction to the tribal court of the Indian child’s tribe. In general, the

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ICWA favors a transfer of jurisdiction of a child custody proceeding involving an Indian child to a
tribal court unless certain findings are made by the state court judge. The parent of an Indian child
can always veto a transfer to a tribal court
, as can the tribal court decline a transfer of jurisdiction to
its court. Many Tribes do not transfer jurisdiction over the majority of child custody proceedings
involving their children, many times because they lack the financial resources to provide for the
children that the State may be able to access.

Notice is a vital component of the Indian Child Welfare Act. The act requires any party to an

involuntary child custody proceeding involving an Indian child to give notice to the child’s parents,
Indian custodian (if one exists), and to the Indian child’s tribe of the commencement of the
proceeding. Notice is triggered by any suggestion that the child is an Indian child and any tribe with
possible affiliation must be given notice. Most courts have ruled that the failure to give notice under
the Act deprives the state court of jurisdiction. In many cases, more than one tribe must be given
notice because of differing tribal affiliations among the parents. If a party cannot determine which
Tribe the child is affiliated with, notice may be given to the Bureau of Indian Affairs which is then
charged with the responsibility to determine tribal affiliation.

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Other procedural requirements of ICWA govern the weight of the evidence and type of

evidence necessary to sustain an involuntary foster care placement or involuntary termination of
parental rights. In order to achieve an involuntary placement of an Indian child outside of his home,
the party seeking removal must establish by clear and convincing evidence, supported by the
testimony of a qualified expert witness, that the child would suffer severe emotional or physical
harm if left in the child’s home. The moving party must also establish that active remedial and
rehabilitative services were offered to the family to attempt to avoid removal. To sustain a
termination of parental rights, the Court must find beyond a reasonable doubt that these
requirements are shown. The requirement that a qualified expert witness’ testimony support removal
or termination is an attempt by Congress to assure that a person with specific knowledge of Indian
child-rearing practices testify to the cultural propriety of removal or termination. In general, a
qualified expert witness is either a person with specialized knowledge of Indian cultural practices

regarding child rearing or a person with professional knowledge which can aid the court in deciding
a child custody matter. The need to demonstrate that active remedial and rehabilitative services are
provided Indian families is similar to the requirement found elsewhere in federal law, except under
ICWA those services have to be provided before removal is effected as well as afterwards in an
attempt to seek family reunification.

Indian parents and custodians are also entitled to the appointment of counsel in ICWA cases,
notwithstanding their need. If a state would otherwise not appoint counsel in a particular matter but
does because of the mandate of ICWA, that state can apply to the BIA for reimbursement for the
expenses of court-appointed counsel.

The Indian Child Welfare Act recognizes that Indian tribes have unique rights which must

be preserved in litigation regarding the placement of their children. To protect these rights, the Act
gives an Indian tribe the right to intervene at any stage of an ICWA proceeding and also vests in the
Tribe the right to request a transfer of the proceeding to a tribal court. Tribes are also given
additional time to prepare for litigation after notice is provided and they also have a fairly unlimited
right of discovery in ICWA cases. Lastly, Indian tribes are given an independent right to discover

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the placement location of their tribal members and are also given the right to collaterally challenge
actions taken by state courts and entities in violation of the Indian Child Welfare Act.
The substantive provisions of the ICWA are the placement preference provisions contained
at 25 U.S.C. 1915. These provisions are designed to assure that Indian children that are removed
from their homes be placed in homes that reflect their unique cultures. There are separate placement
preference provisions governing foster care and adoptive placement preferences. Both recognize
that Indian tribes should have the right to alter the placement preferences by enacting their own
preferences for placement of their children. Absent that, state courts are directed to place Indian
children

  1. first with their extended families (which in the case of a child of both Indian and non-
    Indian parents would include the non-Indian family members)
    ,
  2. second with a home licensed by the Tribe,
  3. third with a member of the child’s tribe,
  4. fourth with another Indian family and as a last resort with a non-Indian family.

Despite this mandate of ICWA, many Indian children continue to be placed predominately with non-Indian foster families, primarily due to the failure of some states to
recruit sufficient Indian foster families.

The Indian Child Welfare Act has, as one of its primary objectives, eliminating the removal

of Indian children from their families and tribes based upon cultural bias or ignorance. Over twenty
years after that law’s enactment, Indian children have not seen a substantial decrease in the
incidence of their removal from their families. In 1996, more than half a million children were in
state-run foster care. (6) Indian children are significantly over-represented in foster care, (7) with an Indian child three times more likely to be placed in foster care or substitute care than any other child in the general population. In some states that number is as high as sixteen times more likely. (8) Indian
children may be in foster care under the legal custody of state or county governments, tribal
governments, or under the legal control of the Bureau of Indian Affairs. Although Indian tribes have been able to tap into alternative sources of funding to pay foster care since the enactment of the Indian Child Welfare Act, (9) Title IV-E of the Social Security Act remains the primary basis for the

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payment of foster care subsidies for Indian children in substitute care. Unfortunately, despite recent
efforts to amend federal law Indian children remain ineligible for Title IV-E foster care payments
unless they are placed by a state court in substitute care or by a tribal court on a reservation which
has a Title IV-E cooperative agreement with the state wherein that tribe is located. (10) This deficiency inhibits the effective implementation of the Indian Child Welfare Act
because Indian tribes are strapped for the resources necessary for them to provide for their children
when they are being removed from their families. As a result, many Indian tribes cannot transfer
jurisdiction over their children back to their tribal courts simply because they lack the financial
wherewithal to provide foster care subsidies for those children and to provide necessary services for
them. Even for children on certain Indian reservations where state courts lack jurisdiction, many Indian tribes, including several in South Dakota, have resorted to requesting state and county
assistance in providing child protection services in order to access Title IV-E resources and services

for those children.

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AN OVERVIEW OF TITLE IV-E ,THE ADOPTION AND SAFE FAMILIES ACT AND THE
INTERPLAY WITH ICWA

The biggest obstacle to Indian tribes fully implementing ICWA is their inability to access

necessary funding and services. Title IV-E of the Social Security Act is a federal matching grant
program designed to reimburse states for foster care, adoption assistance, and transitional
independent living program payments. The number of children in foster care has increased 65%
over the past ten years.(11) To address the steadily increasing foster care caseload, Congress recently
passed the Adoption and Safe Families Act (hereinafter referred to as ASFA) of 1997.(12) Accessing
Title IV-E funds depends, in part, on whether tribes and states comply with the requirements of
ASFA.

ASFA was aimed at improving the safety of children and promoting adoption or some other

type of permanency for children in long-term foster care. ASFA mandates the timely placement of
children in permanent homes. States are free to adopt more restrictive time restraints, but at a
minimum ASFA requires that any child who has been in foster care for 15 out of the most recent 22
months be reviewed for termination of parental rights and freed for adoption. ASFA computes the
foster care entry based the date the court finds the child neglected or abused or 60 days after the
child’s actual removal from the home whichever is earlier.

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ASFA contains a requirement that the foster care agency make reasonable efforts to prevent
the need for removal of the child or reasonable efforts to reunify the family. However, an attorney
representing an Indian parent should be critically aware of ICWA mandates regarding continued
active efforts of reunification. Attorneys representing Indian children must insist that the active
effort requirement set forth in ICWA be adhered to by the foster care agency. The burden is on the
foster care agency to demonstrate that those active efforts have proven unsuccessful in keeping the
family together. While ASFA contains some exceptions to the reasonable effort requirement, there
are no circumstances that allow the State to circumvent the active efforts set forth in ICWA. Thus,
the ICWA active efforts reunification provisions in some cases may conflict with the termination of

reunification efforts mandated by ASFA.

The court systems, both tribal and state, that place Indian children in substitute care are not

exempt from the various provisions of AFSA. Although there is commentary by the Administration
for Children and Families in promulgating regulations to implement AFSA that recognizes that it
does not intend to supersede the various provisions of the Indian Child Welfare Act, AFSA is very
unclear on how to reconcile its provisions and those provisions in ICWA that seem to conflict. The
South Dakota Supreme Court is presently being called upon to resolve this conflict in a pending
matter, Matter of SB. However, no provision in ASFA indicates an intent to modify ICWA. In
most child welfare cases, an Indian child who falls under ICWA will continue to be entitled to the
protections of ICWA, unless the state courts interpret ASFA as overruling certain ICWA
protections.

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Accessing Title IV-E funds is one of the most critical steps a tribe can take in preserving

sparse tribal social services foster care funds. Title IV-E money is of paramount importance to a
tribe because the federal government reimburses a large portion of the foster care expenses. This
approach allows a tribe to preserve the Bureau of Indian Affairs foster care dollars and tribal monies
for those foster care placements that are not eligible for IV-E funding. The tribe will then be able to
provide foster care services to more needy Indian children in Indian Country. Further, children
who receive IV-E foster care funding are also eligible for Medical Assistance under Title XIX of
the Social Security Act that will pay for the child’s various health care needs. Indian children that
are not Title IV-E eligible are not automatically eligible for Title XIX benefits and may be forced to
rely upon Indian Health Services and its contract health program. Any foster child that was placed
by a tribal court and who resided within an Indian Health Service health delivery area at the time of

placement remains eligible for health services through the Indian Health Service notwithstanding
the placement off a reservation.

In general, an Indian child residing outside of Indian Country, or an Indian child residing within
Indian country and who is placed in the legal custody of a state or county child protection program,
is eligible for Title IV-E funding if at the time of removal, the child’s family was eligible for
Temporary Assistance for Need Families (TANF), formerly known as Aid to Families with
Dependant Children or AFDC,
or if the child was eligible for Supplemental Security Income(SSI).
Indian children, both those residing outside Indian country and within Indian country, are
considered citizens of the state in which they are residing for purposes of gaining entitlement to the
various programs of the Social Security Act, including Title IV-E. Federal law requires that each
state which receives Title IV-E funds must provide child welfare services to all eligible children

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including Indian children who reside in the state. (13) Furthermore, the Administration for Children and Families (hereinafter ACF), the agency which funds State and some Tribal child welfare programs under the various titles of the Social Security Act, expects states to coordinate with Tribes for the provision of services and protections to tribal children who are in state or county custody.

(14)Failure to confer could result in the termination of benefits under Title IV-B of the Social Security
Act.
The problem regarding Indian children domiciled on Indian reservations accessing Title IVE
resources is not that they are ineligible for such services under federal law, but that they can only
access those resources through the intercession of state courts or state child protection programs. An
Indian child placed in the custody of a tribal child protection program by a tribal court is not, ipso
facto, eligible for Title IV-E foster care subsidies, notwithstanding his family’s eligibility for TANF
prior to his removal. This is because Congress, when it enacted Title IV-E, conditioned eligibility
for foster care subsidies and other programs under Title IV-E on the child being placed in the
custody and control of a state or county government, with no mention of tribal child welfare
programs.

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On Indian reservations, primarily due to the enactment of the Indian Child Welfare Act

and the recognition by the courts that Indian tribes retain the inherent rights to apply their own laws
to Indian children free of interference from state laws and entities, Indian tribes have the primary
responsibility for protecting the welfare of Indian children. Tribes may be reluctant to place their
children in state or country custody because of the abuses documented by Congress when it enacted
the Indian Child Welfare Act. In addition, state or county child protection programs may balk at
honoring tribal court orders placing Indian children in their legal custody because they are bound by
certain federal regulations, which require the cooperation of the courts that place them. Tribal laws
may not mirror these federal requirements and these agencies may feel that they cannot comply with
federal regulations when they are subject to the inconsistent dictates of tribal court orders.

The irony in this apparent congressional oversight in assuring the eligibility of Indian

children placed by tribal courts for Title IV-E benefits is that Congress in the Indian Child Welfare
Act apparently addressed this issue by assuring Tribes that for the purpose of determining eligibility
for federal assistance a tribal foster care license should be the equivalent of a state or county foster
care license. (15) Theoretically, therefore, ICWA dictates that an Indian child placed in tribally-

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licensed home should be eligible for Title IV-E and the corresponding Title XIX medical assistance
programs and Title IV-D child support enforcement programs.

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B.J. Jones Footnotes:

1 As the founder of one of the first boarding schools, Richard Pratt, stated in 1892: “Kill the Indian
in him and save the man.
” A Bid to Redefine Indian Education, Nov. 27, 1995 New York Times. – Back to Article

2 As anthropologist Peter Farb described the boarding school experience: “The children were
usually kept at boarding school for eight years during which time they were not permitted to see
their parents, relatives or friends. Anything Indian-dress, language, religious practices, even
outlook on life…was uncompromisingly prohibited. Ostensibly educated, articulate in the English
language, wearing store-bought clothes and with their hair cut short and their emotionalism toned
down the boarding school graduates were sent out either to make their way in a white world that did
not want them or to return to a reservation to which they were now foreign.
” P. Farb, MAN’S RISE
TO 257- New York: E.P. Dutton &Co. Inc. 1968) – Back to Article.

3 . One of the best examples is this is the following statement from the Commissioner of Indian
Affairs who stated: “It is admitted by most people that the adult savage is not susceptible to the
influence of civilization, and we must therefore turn to his children, that they might be taught how
to abandon the pathway of barbarism and walk with a sure step along the pleasant highway of
Christian civilization… They must be withdrawn, in their tender years, entirely from the camp and
taught to eat, to sleep, to dress, to play , to work and to think after the manner of the white man.”

See Çomm’n Ind. Aff. Ann. Rep. , H.R. Exec. Doc. No. 1, 50th Cong.,2d Sess., XIX (1888) – Back to Article

4 Examples of these laws include the Indian Child Welfare Act, 25 USC 1901 et seq., the Indian
Self-Determination and Education Assistance Act of 1975 (P.L. 93-638), 25 U.S.C. 450a-450n. – Back to Article.

5 As a general proposition, more Indian children domiciled on Indian reservations rely upon programs operated by the states for their subsistence than rely upon tribal programs for their survival. This is largely the result of the legal reality that most of the programs designed to provide for poor children can only be operated by state governments because they are the only legal entities entitled to receive federal dollars to operate such programs. Although this change somewhat in 1996 with the enactment of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub L 104-193), which allows Tribes to now operate the TANF and child support enforcement programs, that law fails to appreciate that tribal governments do not have the same resources as states to come up with the necessary fiscal matches to operate those programs. – Back to Article.

6 The State of the Children; An examination of Government-run foster care, August 1997 NCPA Policy Report Nw. 210, ISBAN #1-56808-07904, By Conna Craig and Derek Herbert, Institute for Children. – Back t o Article

7 Opportunities For ACF To Improve Child Welfare Services and Protections for Native American Children, Department of Health and Human Services, Office of Inspector General, August 1994. – Back to Article.

8 Opportunities For ACF To Improve Child Welfare Services and Protections for Native American Children, Department of Health and Human Services, Office of Inspector General, August 1994. – Back to Article

9 Those alternate resources include Title II of the Indian Child Welfare Act, 25 USC 1931-1932, which allows for funding for Indian tribes for the operation of child welfare programs and the application of tribal codes; and Title IV-B of the Social Security Act, 42 USC 628, which authorizes direct grants to Indian tribes for the delivery of child welfare services. – Back to Article

10 See Native Village of Stevens v. Smith, 770 F.2d 1486 (9th Cir. 1985), cert denied 475 U.S. 1121 (1986). – Back to Article

11 The State of the Children; An examination of Government-run foster care, August 1997 NCPA Policy Report Nw. 210, ISBAN #1-56808-07904, By Conna Craig and Derek Herbert, Institute for Children. – Back to Article

12 PL 105-89, Codified at 42 USCA Section 671 et seq (1998) – Back to Article

13 P.L. 96-272; see also Department of Health and Human Services, Office of Inspector General,
Opportunities for ACF to Improve Child Welfare Services and Protections For Native American
Children., June Gibbs Brown, Inspector General, August 1994. – Back to Article

14 Department of Health and Human Services, Office of Inspector General, Opportunities for ACF to Improve Child Welfare Services and Protections For Native American Children., June Gibbs Brown, Inspector General, August 1994. Back to Article

15 See 25 USC 1931(b). – Back to Article


A Quick Research Guide to the Indian Child Welfare Act’s Legislative History

Compiled from Information Written by the Alaska Legal Services Corporation **

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The process in which ICWA became federal law:

A federal bill becomes a law by being

  • (a) introduced by a member of Congress,
  • (b) considered by congressional committees in its house of origin,
  • (c) debated and amended on the floor of its house of origin,
  • (d) passed by that house and transmitted to the other house,
  • (e) considered by committees in the other house,
  • (f) debated and amended on the floor of the other house,
  • (g) passed by that house and returned, perhaps in an amended form, to its house of origin,
  • (h) adjusted, if there are any differences between the House and Senate versions, either by the originating house’s accepting the other’s amendments or by the amending house’s receding from its amendments, and
  • (i) signed by the President, allowed by the President to become law without his signature, or vetoed by the President but with the veto overridden by Congress.

The Indian Child Welfare Act:

(a) Originally introduced by Senator Abourezk in 1976 and then again in 1977, began as Senate bill number 1214 (S. 1214).

(b) It was considered by the Senate Select Committee on Indian Affairs

(c) It was debated on the floor of the Senate, amended and passed by the Senate in 1977.

(d) It was then transmitted to the House of Representatives.

(e) Representative Udall’s sponsored the House version, H.R. 12533 in the spring of 1978. It was then considered by the House Interior Committee’s subcommittee on Indian Affairs and Public Lands.

(f) It was debated and amended on the House floor and then passed on October 14, 1978.

(g) It was then returned to the Senate, where the Senate agreed to the House amendments and passed it on October 15, 1978.

h) It was signed by President Carter. t


lls.

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Legislative Bills.

According to the LEXIS/CIS legislative history, the four ICWA-related bills introduced into Congress were

  1. S. 3777 (94th Cong.),
  2. S. 1214 (95th Cong.),
  3. S. 1928 (95th Cong.) and
  4. H.R. 12533 (95th Cong.) … but, as it turns out, S. 1928 was simply a Title IV-E bill that BIA and HEW were suggesting would take care of the problems ICWA addressed. Copies of the various versions of each of these bills are available through the CIS system (but not online). Don’t be alarmed when you see that the fiche-compilers have messed up the first version of H.R. 12533 by substituting several pages from another bill. If you go to the next version, you can spot the text of the previous version in the ‘strikethrough section.’

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Hearings.

The principal hearings, in 1974, 1977, and 1978, are available through the CIS system. We also have Extensive Legislative hearing record available on hardcopy. Will be transcribing parts or scanning as time allows.

  • Indian Child Welfare Program, 93rd Cong., 2d Sess. (1974), 1975 CIS S441-25
  • Indian Child Welfare Act of 1977, Hearing … on S. 1214, 95th Cong., 1st Sess. (1977), 1978 CIS S961-3
  • Indian Child Welfare Act of 1978, Hearing … on S. 1214, 95th Cong, 2d Sess. (1978), 1981 CIS H441-15

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Committee reports.

The most important committee reports (the only committee reports?) are:

  • S. Rep. No. 95-597, 95th Cong., 1st Sess. (1977), available only through 1977 CIS S963-20
  • H. Rep. No. 95-608, 95th Cong., 2d. Sess. (1978), reprinted in 1978 U.S. Code Cong. & Ad. News 7530, 1978 CIS H443-53

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Congressional Record.

Senator Abourezk made sponsor statements when introducing

  1. S. 3777 [122 Cong. Rec. 28094 (August 27, 1976)] and
  2. S. 1214 [123 Cong. Rec. 9994-998 (April 1, 1977)].

The Senate briefly debated S. 1214 before passing it [123 Cong. Rec. 37223-226 (November 4, 1977)].

Representative Udall’s sponsor statement for

1. H.R. 12533 is at 124 Cong. Rec. 12532-534 (May 3, 1978).

According to the LEXIS/CIS legislative history, H.R. 12533 was debated in and passed the House on October 14, 1978, but on that same day the House vacated this passage, substituted the text of H.R. 12533 for the text of S. 1214, and passed S. 1214, with the Senate concurring in the House amendments to S.1214 the next day, October 15.

The official record of the Senate action says it took place on October 14. The House’s deliberations are at 124 Cong. Rec. 38101-112 (October 14, 1978), and the Senate’s are at 124 Cong. Rec. 37537-540 (October 14, 1978).


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BACKGROUND OF ICWA

Discusson Excerpts from Doe v. Mann – July, 2005

U.S. 9th Circuit Court of Appeals, No. 04-15477, D.C. No. capacity; ROBERT L. CRONE, JR., in ??CV-02-03448-MHP, Filed July 19, 2005

Page 8436

B. BACKGROUND OF ICWA

Congress passed ICWA in 1978 in response to a growing concern that Indian children were removed from their homes by state child protection officials at an alarmingly high rate and placed in foster care or adoption settings outside their Indian communities and culture. See 25 U.S.C. § 1901(4); Holyfield, 490 U.S. at 32. “At the heart of ICWA” lies a jurisdictional scheme aimed at ensuring that tribes have a role in adjudicating and participating in child custody proceedings involving Indian children domiciled both on and off the reservation. Holyfield, 490 U.S. at 36. This aim is reflected in § 1911(a)’s broad grant of exclusive jurisdiction to most tribes. 25 U.S.C. § 1911(a).

As we have explained, the “existing Federal law” proviso in § 1911(a), providing tribes with exclusive jurisdiction “except where such jurisdiction is otherwise vested in the State by existing Federal law,” is the crux of this case. Although the text of the proviso does not specifically identify Public Law 280, the legislative history surrounding the adoption of § 1911(a) and subsequent court decisions confirm that Congress was referring, at least in part, to Public Law 280. See H.R. Rep. No. 95-1386, at 32 (1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7554 (letter from Department of Interior); H.R. Rep. No. 95-1386, at 40, 1978 U.S.C.C.A.N. 7530, 7563 (letter from Department of Justice); Holyfield, 490 U.S. at 42 n.16; Native Village of Venetie I, 944 F.2d at 555.

An earlier draft of ICWA, House Resolution 12533, included a provision similar to § 1911(a) but did not refer to “existing” federal laws:

“Sec. 101. (a) An Indian tribe shall have jurisdiction exclusive as to any State over any placement of an Indian child who resides on or is domiciled within the reservation of such tribe.”

Court-Appellees’ Answer Brief at App. 22. During consideration of this earlier legislation, the Departments of Justice and Interior alerted Congress that this section could strip states of jurisdiction already existing where Public Law 280 applied. The Department of the Interior stated,

“We believe that reservations located in States subject to Public Law 83-280 should be specifically excluded from section 101(a) . . . .” (13)

The Department of Justice voiced similar concerns in two letters to Congress:

“As you may be aware, the courts have consistently recognized that tribal governments have exclusive jurisdiction over the domestic relationships of tribal members located on reservations, unless a State has assumed concurrent jurisdiction pursuant to Federal legislation such as Public Law 83-280 . . . . [S]ection 101(a) of the House draft, if read literally, would appear to displace any existing State court jurisdiction over these matters based on Public Law 83-280. We doubt that is the intent of the draft because, inter alia, there may not be in existence tribal courts to assume such State-court jurisdiction as would apparently be obliterated by this provision. (14)

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13 Letter from Forrest J. Gerard, Assistant Secretary of Interior, H.R. Rep. No. 95-1386, at 32, reprinted in 1978 U.S.C.C.A.N. 7530, 7554. 8437 DOE v. MANN

14 Letters of Patricia M. Wald, Assistant Attorney General, H.R. Rep.

No. 95-1386, at 35, 40, reprinted in 1978 U.S.C.C.A.N. 7530, 7558, 7563.

After these letters were received, Congress amended the legislation to include the “existing Federal law” proviso that became law.


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ATTORNEY Questions –

> Yes that would be great. Also I am wondering if you have any of when the ICWA was enacted. Specifically I am looking the legislative history for the intent regarding active efforts in the enacting of but would like to see all of it. Thanks.

– I am trying to see if one of the law libraries here have the info. Specifically I am looking for the intent regarding “active efforts, i.e. remedial services, pursuant to 1912 (d). It states any party must provide remedial services if they are trying to effect a TPR. I think it refers to social service agencies and welfare agencies, not private parties who had the child voluntarily placed with them by the mother….

http://www.google.com/search?sourceid=navclient&ie=UTF-8&rls=GGLB,GGLB:1969-53,GGLB:en&q=ICWA+legislative+history

– I will look for more information as well. According to this site, I might have to seek hard copy of the Congressional Records. But you are right, this is important stuff ….

I will start by looking for the texts noted below just to see of any of them are on-line yet …

Look up the Multi-Ethnic Placement Act (MEPA) 1994 (Public Law 103-382) as well as the amendment to it, Inter-Ethnic Placement Provisions, 1196, (Public Law 104-188)

Adoptions and Safe Families Act (ASFA) 1997 (Public Law 105-89)

This was a 1996 bill intended to promote the welfare of children – but as you can see, strong opposition rose up to a section that would have affected ICWA.

The welfare of children of tribal heritage, it seems, is consistently put second to the welfare of tribal government.

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* According to the Alaska Legal Services Corporation: Much of ICWA’s legislative history is not yet available online and relatively little of it is reprinted in the U.S. Code Congressional and Administrative News. However, we now have hardcopy of the Legislative History and will be working on gettng it transcribed. Much of the ICWA legislative history could also be available in libraries that have a full set of Congressional Information Service (CIS) microfiches, or at least a microfilm/microfiche collection of the Congressional Record.

The CIS fiches contain the text of ICWA bills, the printed ICWA hearings, and the ICWA committee reports; the Congressional Record contains statements by bills’ sponsors and records of Congressional deliberations.

In Alaska, there are full CIS sets in Anchorage (Consortium Library and []), Fairbanks (Rasmuson Library), and Juneau (State Library), while there are Congressional Record materials at Consortium Library, [], and the State Library in Juneau.

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** In accordance with Title 17 U.S.C any copyrighted work on this website is distributed under fair use without profit or payment for non-profit research and educational purposes only.

We ENCOURAGE you to go to the original sources to check for accuracy, as well as in some instances the complete document.


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Christian Alliance for Indian Child Welfare

PO Box 253, Hillsboro, ND 58045 – 0253

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