Better ICWA Practices:
Recommendations for Improving
Compliance with Tribal Notice and
Placement Preferences
Jill E. Tompkins (Penobscot)
Clinical Professor of Law
Director, American Indian Law Program
University of Colorado Law School
1
2
A. Caseworker
B. County District
Attorney
C. Respondent’s counsel
D. Judge
E. Other
3
How many ICWA cases
have you been involved
with?
A. None
B. Less than 3
C. More than 3, but less
than 10
D. More than 10
E. What’s ICWA?
4
• Indian
wars (Civil War veterans)
•Massacres (Sand Creek, many others)
•Trail of Tears & Broken Treaties
•Wholesale loss of Indian land
•Decimation of Indian culture and government
•First boarding school opened after Custer’s
defeat
Philosophy of
Boarding Schools
Gen. Richard Henry Pratt
Carlisle Indian School
Student Body
Pratt was described as, “The red man's Moses"
and “An honest lunatic.”
Start with the children . . .
“In the
White Man’s Image”
“Savages” Into
the Image of
the White Man
 Changed their names
 Hair cut short
 Prohibited to speak Native languages
 Christianity forced upon them, Native
religion suppressed
 Stripped of traditional clothing; force to
wear uniforms
 Raised under strict military discipline
 Under constant surveillance
 Neglect (starvation)
 Physical abuse
 Sexual abuse
Bureau of Indian Affairs Boarding
School Population
Navajo Children
10%
BIA Boarding
School
Non-Boarding
School
90%
Riverside Indian School, Present Day
(Longest continually occupied)
Riverside Indian School,
Anadarko, OK (1871)
The “wholesale removal of Indian children
from their homes . . . is perhaps the most
tragic aspect of Indian life today. . .”
--1974 Senate Committee Hearing
Which of the following is true?
A. 25 to 35% of all Indian children were
being removed from their families
B. 85% of removed Indian children
were placed in non-Indian homes
C. In Minnesota, 1 in 4 Indian children
under the age of one were removed
and adopted by non-Indians
D. All of the above
20
Indian juvenile
population
Indian children in
foster care
7
40
60
Indian
Indian
NonIndian
NonIndian
93
Foster care placement
of Indian Children
Indian Child Placements
85%
100%
In foster care
Non-Indian placement
Adoptions of Indian children
under the age of one year
•
Standards for removal
• Very few (less than 1% in North Dakota) for physical abuse
• 99% of cases based on “neglect” or “social deprivation”
•
Misunderstanding of Indian Extended Family
Dynamics
• Leaving a child with relative seen as irresponsible or
neglectful
• Ignorance of cultural traditions (e.g. grandparents to raise
child as the norm)
•
•
•
•
South Dakota Dept. of Public Welfare
petitioned to terminate SissetonWahpeton mother’s rights
Grounds: 4 year old son sometimes left
with 69-year old great-grandmother
Caseworker admitted child was wellcared for
But added that the great-grandmother
“is worried at times”
•
Ignorance of child rearing practices
• Child seen as “running wild”
• Parents seen as being “permissive”
• Different but effective way of parenting as a
community
•
Reservation conditions
• Poverty, poor housing, overcrowding, lack
of modern plumbing, etc.
• Tribes forced onto reservations at gunpoint,
prohibited from leaving without a permit.
• Now Indian parents told that they live in a
place unfit to raise their children
Blossom’s mother asked her aunt to
take her from Rosebud Reservation
to California
Mother was to follow
State tried to use poverty against
the mother
•
•
•
Week after Blossom arrived, social workers placed her in a preadoptive home
• No evidence mother was unfit
• Social workers asserted that an Indian reservation was an
unsuitable environment and the pre-adoptive parents could
financially provide a superior home and way of life
• Counsel was able to return Blossom to her mother
•
•
•
•
Judges also lacked cultural knowledge
Lacked a clear standard of abuse or
neglect
Discriminatory standards made it
virtually impossible for Indians to be
foster or adoptive placements
• Modest means but could still provide
excellent care
• Lack of licensed Indian foster homes still
exists in Colorado and nationally
• Non-Indians still furnish almost all Indian
child placements
•
•
•
•
•
Neither Indian parents or children
represented by counsel
Rare to have expert witness testimony
Often used voluntary waivers so that Indian
parents could obtain welfare
Coerced waivers of custody later used to
support termination petition
BIA & HEW gave economic incentives to
state agencies for foster care
• In Wisconsin (1969), Indian children 70% of
foster care placements but only 8% of
adoptions (payments stop)
National Public Radio: “All Things Considered”
Native Foster Care: Lost Children, Shattered Families
Recent 3-part investigation in South Dakota
http://www.npr.org/2011/10/25/141672992/native-foster-care-lost-children-shattered-families
South Dakota Today
Indian children
population statewide
Indian children in
South Dakota
foster care
15
Indian
Indian
50
50
NonIndian
NonIndian
85
South Dakota Today
Indian Child Placements
10%
90%
Indian home placement
Non-Indian placement
Actually worse now than pre-ICWA!
New Mexico Disproportionality
•
18th in the Nation
• 10.3% of child population
•
•
•
• 9.8% of foster care
South Dakota, 6th
Minnesota, 1st
Nationally, American Indian children are 1.2%
of general population but 2.6% of foster care
population
Impact on Parenting
“Lost Birds”
Francesca
“Split Feather” Syndrome

“Most of the people who were
being given Indian children
were well-meaning, some
were not.”
“I have heard it said that an
Indian child being raised by a
non-Indian is like a swan
trying to raise an eagle.”
--Tina Albert
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Long-term psychological damage suffered by an
Indian child from placement in a non-Indian foster
or adoptive home.
Study of 20 Indian (First Nations) adult foster
children or adoptees. By Carol Locust.
Depression
 Alcoholism & substance abuse
 Aggressive behavior
 Poor self-esteem (discrimination)
 Lack of purpose in life
 Poor educational and work performance
 Lack of connection and place in the world
 Poor interpersonal relationships

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 19
of 20 were repatriated
 Education and employment greatly
improved
 Personal lives improved dramatically
38
The father of girl who is the subject
of a D & N proceeding is of Navajo
ancestry. Both the father’s parents
are full-blooded. His daughter’s
mother is non-Indian. Navajo law
states that a child who is born to a
member and has ¼ Navajo blood is
a member and eligible for
enrollment.
Is this an “Indian child”?
A. Yes
B. No
At the first interview with
the parents, there’s no
indication that the child is
an Indian child.
Is that all the caseworker
must do to comply with
ICWA?
A. Yes
B. No
43
The parent in a D & N case denies
any Indian heritage. Caseworker
hears from a neighbor that the
parent previously mentioned family
living on a South Dakota
reservation.
Must the caseworker follow up?
A. Yes
B. No
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It is the tradition in the
child’s tribe that if a parent
can’t care for the child the
maternal relatives must.
Child has a maternal greataunt (67) and a paternal
uncle (36) who want
placement. Where should
the child be placed?
A. Uncle
B. Great-aunt
52
Does your office/agency
maintain a clear separate
record of a child’s every
placement?
A. Yes
B. No
C. Not applicable
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54
How difficult have you
found it to locate Indian
foster homes in New
Mexico?
A. Never had to try
B. Not very difficult
C. Very difficult
D. Nearly impossible
55
Must a court invalidate an
adoption of an Indian child that
has been in place for over a
year if it is established that the
tribe did not receive notice of
the motion to terminate
parental rights?
A. Yes
B. No
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Which of the following is true
for you?
A. I’ve been involved in a
case where a CCA was
used
B. Never had a case involving
a CCA but would consider
in future
C. I think CCA’s are a bad idea
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Jill and Uncle Dale Lolar at a scholarship run on Indian
Island, Penobscot Indian Nation reservation, Maine
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