Achieving Permanency for American Indian and Alaska Native Children: Lessons from Tribal Traditions

• Author: Barbara Ann Atwood
• Position: Professor of Law, The University of Arizona James E. Rogers College of Law
• Pages: 239-292

Page 239

ACHIEVING PERMANENCY FOR AMERICAN INDIAN AND ALASKA NATIVE CHILDREN: LESSONS FROM

TRIBAL TRADITIONS

BY PROFESSOR BARBARA ANN ATWOOD^*

One of the many challenges facing the American child welfare system is the need for practices that are responsive to the unique cultural needs of the children who are placed in foster care.¹The goal of achieving permanent, stable placements for children in the child welfare system is an over-arching objective, but “permanency” is a chameleon term in the child welfare world whose meaning varies from context to context and culture to culture. Over 500,000 children are currently in foster care across the United States, representing different races, ethnicities, and cultural backgrounds.²In this article, I explore the concept of permanency in child

_______________________________________________________

* Mary Anne Richey Professor of Law, The University of Arizona James E. Rogers College of Law. I thank Capital University Law School and the National Center for Adoption Law and Policy for the opportunity to participate in the Fourth Annual Wells Conference. I am also grateful to Guadalupe Gutierrez, Class of 2009, James E. Rogers College of Law, for her outstanding research assistance in tribal law.

¹A growing body of literature has identified the inadequacies and biases of the American child protection system in a multi-cultural society. See, e.g., DOROTHY ROBERTS,

SHATTERED BONDS (2002) (criticizing pervasive racial disparities in the child protection system, particularly over-representation of African-American children in foster care); Annette R. Appell, Protecting Children or Punishing Mothers: Gender, Race, and Class in the Child Protection System, 48 S.C. L. REV. 577 (1997); Sacha Coupet, Swimming Upstream Against the Great Adoption Tide: Making the Case for “Impermanence,” 34 CAP.

U. L. REV. 405 (2005) (contending that permanent guardianships with kinship caregivers, especially within African-American communities, may provide superior permanency alternative to adoption); Theresa Hughes, The Neglect of Children and Culture: Responding to Child Maltreatment with Cultural Competence and a Review of Child Abuse and Culture: Working with Diverse Families, 44 FAM. CT. REV. 501 (2006) (praising movement toward “cultural competence” in legal representation of families in child protection proceedings); Eliza Patten, The Subordination of Subsidized Guardianship in Child Welfare Proceedings, 29 N.Y.U. REV. L. & SOC. CHANGE 237 (2004) (criticizing child welfare system for preferring adoption over other forms of extended-family caregiving more prevalent in minority cultures).

²According to the most recent data from the U.S. Department of Health and Human Services, 510,000 children were in foster care on September 30, 2006, and of that group,

(continued)

Page 240

240 CAPITAL UNIVERSITY LAW REVIEW [37:239

welfare proceedings involving American Indian and Alaska Native children: a population that is still over-represented among the nation’s foster children, despite the strides of the last three decades.³

Two federal laws with contrasting approaches to permanency have particular relevance: the Indian Child Welfare Act of 1978⁴(ICWA) and

two percent were identified as American Indian/Alaska Native, thirty-two percent as Black, nineteen percent as Hispanic, and forty percent as white non-Hispanic. See ADMIN. FOR

CHILDREN, YOUTH & FAMILIES, U.S. DEP’T OF HEALTH & HUMAN SERVS., AFCARS

REPORT: PRELIMINARY FY 2006 ESTIMATES AS OF JANUARY 2008 (14), at 2 (2008),

available at http://www.acf.hhs.gov/programs/cb/stats_research/afcars/tar/report14.pdf [hereinafter AFCARS REPORT].

³The Child Welfare League of America reports that for every one thousand American Indian/Alaska Native children in 2003, at least twelve were in foster care; in contrast, for every one thousand white children, five were in foster care. See CHILD WELFARE LEAGUE OF AM., CHILDREN OF COLOR IN THE CHILD WELFARE SYSTEM (2005), http://ndas.cwla.org/ research_info/publications/ (follow “Children of Color in the Child Welfare System (summary)” hyperlink). According to another study, American Indian and Alaskan Native children are over-represented in foster care at more than 1.6 times the expected level. NAT’L INDIAN CHILD WELFARE ASS’N & THE PEW CHARITABLE TRUSTS, TIME FOR REFORM:

A MATTER OF JUSTICE FOR AMERICAN INDIAN AND ALASKAN NATIVE CHILDREN 5 (2007),

http://www.pewcenteronthestates.org/topic_category.aspx (follow “Foster Care” hyperlink; then follow “Time for Reform: A Matter of Justice for American Indian and Alaskan Native Children” hyperlink) [hereinafter TIME FOR REFORM]. In some states, the proportion of

children in foster care who are American Indian exceeds fifty percent. Id. at 16. While the over-representation of Indian children in the foster care system continues, it seems to have decreased in recent years. The latest population estimates from the Census Bureau show that American Indian and Alaska Native children comprise about 1.7 percent of the general population in the United States under the age of eighteen. See POPULATION DIV., U.S.

CENSUS BUREAU, TABLE 2: ANNUAL ESTIMATES OF THE POPULATION BY SEX AND SELECTED

AGE GROUPS FOR THE UNITED STATES: APRIL 1, 2000 TO JULY 1, 2007 (2008),

http://www.census.gov/popest/national/asrh/NC-EST2007-sa.html; POPULATION DIV., U.S.

CENSUS BUREAU, TABLE 4: ANNUAL ESTIMATES OF THE AMERICAN INDIAN AND ALASKA

NATIVE ALONE OR IN COMBINATION POPULATION BY SEX AND AGE FOR THE UNITED STATES:

APRIL 1, 2000 TO JULY 1, 2007 (2008), http://www.census.gov/popest/national/asrh/NCEST2007-asrh.html. Federal data, however, shows that American Indian and Alaska Native children constitute about two percent of the total children in foster care. See AFCARS REPORT, supra note 2, at 2. The reported foster care population does not include Indian

children placed in foster care through tribal child welfare systems.

⁴25 U.S.C. §§ 1901–1934 (2006).

Page 241

2008] ACHIEVING PERMANENCY 241

the Adoption and Safe Families Act of 1997⁵(ASFA). While permanency, a centerpiece of ASFA, is not mentioned in ICWA, permanency as a goal for Indian children is consistent with the basic themes of ICWA. Examples from tribal law and traditions reveal that tribes themselves value continuity and stability for children in their primary caregiving relationships.⁶At the same time, tribes often embrace more fluid approaches to permanency than are contemplated under ASFA.⁷These alternative conceptions of permanency reflect the tribes’ traditions of shared child-rearing and collective responsibility for children. While a few state courts have begun to recognize tribal care-giving traditions in applying ASFA’s command to achieve permanency for foster children,⁸

child welfare laws across the country still favor the permanency model of parental rights termination followed by adoption.

Part I of this article summarizes the operation of ICWA and ASFA with respect to child placements and explores the ways in which the two statutory schemes diverge. I focus on two dimensions: first, the differing standards within each statute that state child welfare authorities must satisfy before removing children from their homes, and, second, ASFA’s guidelines requiring state officials to take steps toward permanency when a child has been out of the home for a defined period of time. In each context, I suggest how ICWA and ASFA together can accommodate the unique concerns of Indian children and Indian tribes. Part II describes several illustrative cases under ICWA in which state courts grapple with the concept of permanency for Indian children. Those decisions reach results that are at odds with each other and, in some instances, with the interests of the children as defined by ICWA. Finally, Part III explores alternative approaches to permanency under tribal law. Drawing on tribal

_______________________________________________________

⁵Pub. L. No. 105-89, 111 Stat. 2115 (codified as amended in scattered sections of 42 U.S.C.).

⁶See infra Part III.

⁷See infra Part III.

⁸See, e.g., In re Welfare of Children of B.W., No. A07-612, 2007 WL 2417331 (Minn. Ct. App. Aug. 28, 2007), discussed infra notes 256–66 and accompanying text. Significantly, a bill pending in the California legislature would permit state courts to recognize traditional or customary adoption as an alternative permanency plan for Indian children even though such adoptions may occur without termination of parental rights. See Assemb. B. 2736, 2007–08 Leg., Reg. Sess. (Cal. 2008) (proposing amendment to section 366.26 of the California Welfare & Institutions Code).

Page 242

242 CAPITAL UNIVERSITY LAW REVIEW [37:239

code provisions as well as tribal court opinions from several tribes, I highlight tribal concepts of open adoption, customary or traditional adoption, extended family care, and “suspension” of parental rights. Many tribes offer a different path toward providing care for children in need, one that avoids the all-or-nothing approach to parental rights that is typically found in state law.⁹These traditions may be more accessible today than in the past because of the greater willingness among tribes to spell them out in codes and published court decisions. Thus, state judges and child welfare officials have the opportunity today to redefine permanency for purposes of ICWA and ASFA to include a variety of stable care-giving arrangements embraced by tribes themselves.

I. THE COMBINED IMPACT OF ICWA AND ASFA

A. The Indian Child Welfare Act

The Indian Child Welfare Act (ICWA) was a response to a long history of destructive practices by state and federal governmental officials that decimated Indian families, a history that was brought to light in lengthy hearings before Congress in the 1970s.¹⁰The practices included the...