DOJ Makes New Commitments to Enforce the Indian Child Welfare Act

On December 3^rd at the White House Tribal Nations Conference Attorney General Eric Holder boldly announced that the Department of Justice (DOJ) will be launching a new initiative to ensure compliance with the Indian Child Welfare Act (ICWA). Under this new initiative, the DOJ pledges to actively identify state-court cases where the United States can file briefs opposing the unnecessary and illegal removal of American Indian children from their families and tribes. In addition, the DOJ will work with the Departments of Interior and Health and Human Services on training for state judges and agencies, encouraging tribes to have the decision-making authority of where tribal children should be placed and collecting information about where ICWA is being violated.

This is a big step forward for tribal children.

Prior to the passage of ICWA, government policies routinely removed children from their tribal communities due to a lack of understanding of child-rearing and tribal cultural practices. These children were sent to boarding schools or were placed through the Indian Adoption Project with white families, where mainstream American values were imposed and cultural practices were discouraged. American Indian families were torn apart with no chance for tribes to participate in the decisions made to address to the well being of their children.

In 1978, the Indian Child Welfare Act (ICWA) was passed in recognition that tribes needed to be included in child welfare matters that affected children in their communities. Some key components of the legislation included: clarification that tribes have jurisdiction over child welfare matters on tribal lands and when the parent of an Indian child petitions a state court to transfer jurisdiction to a tribal court, notification to tribes and birth parents of hearings related to foster placement or termination of rights, requiring state and federal governments to recognize child custody proceedings held by Indian tribes, and recognition of tribal foster care licensing standards as equivalent to state licensing standards for the placement purposes.

While passage of ICWA was a victory for American Indian tribes in that the federal government finally recognized that child welfare decisions had to be made in culturally appropriate ways with deference to the tribes, in practice, ICWA implementation never fully took root. American Indian children continue to be removed without proper notice and collaboration between federal, state and tribal governments remains weak in many places. The National Indian Child Welfare Association (NICWA) identifies areas that can be improved upon including: providing additional resources to tribes, ensuring tribal jurisdiction and addressing some of the systemic problems in Indian country such as high rates of unemployment, substance abuse, violence and lack of services that contribute to the abuse and neglect of American Indian children.

The new DOJ initiative has the potential to make an impact on how courts decide placements for American Indian children and increasing partnerships between federal, state and local governments. By filing amicus briefs on behalf of the United States, the DOJ will make clear that ICWA must be followed when decisions are made and that proper notice, due process and jurisdiction should be given to tribes and its members. Some state courts are already purposefully following ICWA provisions. The Michigan Court of Appeals recently reversed a lower court decision to terminate the parental rights of mother with two Indian children, citing that ICWA requires a higher evidentiary standard (serious emotional or physical damage to the minor child) and that the lower court had not met this standard. Hopefully, the DOJ’s efforts will prompt other state courts to use also use the standards set forth in ICWA.

The Attorney General also mentioned increasing collaboration with the Departments of Interior and Health and Human Services. This will likely help ensure that American Indian children have access to services, that providers receive better training on culturally appropriate practices and may potentially help collect better data on their needs. In the coming months, we hope to hear more about the activities the agencies will work on to make these goals possible.

Mr. Holder’s announcement is just the latest in a string of federal attention aimed at addressing the needs of American Indian children. The Attorney General’s Advisory Committee on American Indian/ Alaska Native Children Exposed to Violence recently released a report, Ending Violence so Children can Thrive  that lays out over 30 recommendations for the federal government including increasing resources to tribes, giving criminal jurisdiction tribes over criminal cases involving tribal children (similar to the Violence Against Women Act provisions), increased efforts to ensure compliance with ICWA and increasing training for providers and stakeholders on providing culturally appropriate services. In addition, the Senate Indian Affairs Committee held a hearing on November 19, titled “Protecting Our Children’s Mental Health: Preventing and Addressing Childhood Trauma in Indian Country” where panelists reinforced many of the recommendations made in the Attorney General’s report.

We are pleased that the federal government is making an effort to increase attention on the condition of American Indian children. This population of children is often overlooked even though they have significant needs for resources and services. We hope that the DOJ’s new initiative will lead to tangible improvements for American Indian children and encourage other federal and state agencies to follow suit.