When the Bough Breaks: Federal and Washington State Indian Child Welfare Law and Its Application
| Publication year | 1993 |
I. Introduction
Similar emotional refrains have been often repeated regarding the treatment of Indian child welfare issues during United States history. Although removal of any child from his or her family is traumatic, too frequently Indian child removal has been performed with little prior investigation and with an absence of cultural sensitivity. The resulting inequalities in Indian child foster placement and adoption rates led to a recognition of the need for Indian child welfare reform, both on a federal and state level. This Article provides an overview of Indian child welfare issues and addresses both the evolution and nature of Indian child welfare reform. Initially, this Article discusses the federal Indian Child Welfare Act, including the cultural history behind the Act, the scope of the Act, and the resultant problems in the Act's drafting and application. Subsequently, this Article examines the history of Indian child welfare legislation in Washington State, with a focus on administrative proclamations and guidelines, and statutory enactments.
II. The Indian Child Welfare Act: A Federal Solution to Problems in Indian Child Welfare
A.
The separation of Indian children from their families and the subsequent placement of these children within a non-Indian setting has occurred with alarming regularity in United States history. During the late 1800s, thousands of Indian children were forcibly sent to distant boarding schools for education and training under the guise of civilizing and assimilating the Indian child.(fn2) Once removed from the perceived primitive and harmful influence of their Indian families, these Indian children could allegedly be transformed into productive members of the dominant white culture.(fn3) Such distant education was deemed "the medium through which the rising generation of Indians are to be brought into fraternal and harmonious relationship with their white fellow-citizens."(fn4)
This assimilation required strict discipline. Indian children were harshly treated, punished for speaking their own language, and consistently instructed to purge themselves of all traces of Indian culture.(fn5) While a few of these children assimilated into the dominant non-Indian culture, most either died or returned to their prior Indian homes, misfits in both white and Indian society.(fn6)
Even more intrusive than this forcible boarding school education, however, was the frequent placement of Indian children in non-Indian adoptive families or foster homes. The motives for this widespread separation of Indian children from their families fall into three overlapping categories.
First, racial or cultural prejudice may have caused courts or social workers to believe that a white-looking Indian child would be better off with a white adoptive family. In terminating the parental rights of an Indian woman without a finding of unfitness one state court noted, "[The] child has physical features ... of a non-Indian nature and her return to an environment consisting primarily of Indian people would subject her to being reared under unnatural conditions that would be detrimental and would endanger her emotional well being."(fn7)
Welfare or social workers who personally disapproved of the child's family situation often removed Indian children.(fn8) In the majority of cases, the removal of Indian children was based upon an unfavorable welfare or social worker judgment of either Indian behavior or the home environment by white standards.(fn9) For example, many Indian cultures followed an extended family concept with children cared for by many different adults in the community.(fn10) On the Colville Reservation "[tjhere is no such thing ... as an abandoned child because even if you are a 1/8 cousin, if that child is left alone, that's like your brother or sister, or your son or your daughter."(fn11) Such extended family rearing, however, was often deemed abandonment by white social workers.(fn12) These children were thus at high risk for familial removal.
Second, religious values and beliefs often promoted adoption and foster placement of Indian children in white homes. Historically, for example, Mormon couples have been especially adamant in their attempts to save Indian children from the perceived primitive and degenerate conditions found within the Indian community.(fn13) Such removals were often deemed a religious duty based on scriptures that dictated that Indians have been cursed with dark skin by God because of their ancient wickedness and moral turpitude.(fn14)
Finally, because Indian children are often entitled to nontaxable payments and annuities from tribal funds, adoption and foster care placement may be motivated by the prospect of financial gain. Under 25 C.F.R. § 115.4, individual Indian moneys in a minor's account may be distributed "in such amounts deemed necessary in the best interests of the minor for the minor's support, health, education, or welfare to parents, legal guardians, fiduciaries, or to persons having control and custody of the minor under plans approved by the Secretary."(fn15) When adoptive parents become aware that the Indian child has money available through such an individual Indian account, they can easily exert control over the funds.(fn16) The rate of non-Indian people applying for Indian foster or adoptive placements rises dramatically when an Indian claims settlement is present.(fn17) Financial motives thus could encourage cross-cultural adoptions or foster placements of Indian children in non-Indian homes.
These three factors have contributed to the highly disproportionate removal and adoption rates for Indian children. Surveys conducted in the late 1960s and early 1970s by the Association on American Indian Affairs graphically demonstrate the disparity between Indian and non-Indian children in foster home and adoptive placement.(fn18) In Washington, for example, there were nineteen times as many Indian children as non-Indian children in adoptive homes, and Indian children were placed in foster care at a rate almost ten times higher than that of non-Indian children.(fn19) While this extreme disparity may have lessened in recent years, a 1988 study revealed that the national familial removal rate, for either foster or adoptive care, is 3.6 times higher for Indian than for non-Indian children.(fn20)
The displacement of Indian children from their birth families frequently results in severe emotional and psychological damage to the child. Although there are few psychiatric problems in cross-culturally placed grade school children, social problems begin to arise at adolescence.(fn21) There is much clinical evidence to suggest that Indian children raised in off-reservation, non-Indian homes are at severe developmental and emotional risk during their later development.(fn22) While these children are often cared for by well-intentioned and devoted foster or adoptive parents during adolescence, such children are subject to "ethnic confusion and a pervasive sense of abandonment."(fn23) These cross-culturally raised children try to assume a cultural identity.
Furthermore, Indian children raised in a non-Indian environment are usually denied knowledge of Indian cultural traditions. The opportunities for the Indian culture to survive are significantly reduced if Indian children, the only real means for the transmission of the tribal heritage, are raised in non-Indian homes and denied exposure to the ways of their people.(fn25) If Indian culture is to survive, it is essential that the tribe's cultural attributes are passed on to its children.
Against this alarmingly high backdrop of cross-cultural Indian child foster home and adoptive placements, Congress passed the Indian Child Welfare Act (ICWA) of 1978.(fn26) In this document, Congress formally recognized a national policy to
The ICWA...
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