In the past, state courts, social agencies, and religious organizations were free to remove American Indian children from their homes at will. Now, under the Indian Child Welfare Act of 1978 (ICWA) (P.L. 95-6087), state systems are designated supportive and cooperative roles with restricted decision-making power (Bureau of Indian Affairs [BIA], 1979). However, because most people who work within the system are not acquainted with the federal law or Indian history, they often remain under the impression that their local or institutional authority gives them autonomy in decisions regarding Indian families. This article describes the history and provisions of the ICWA and uses a composite case study to illustrate the issues involved.
A case involving the removal of three American Indian children from their family is being reviewed by a panel of 15 professionals with expertise in child and family matters, child abuse and neglect, child protection laws, and effective treatment for dysfunctional families. Only two members of the group are American Indian; one is a social worker, and the other is a member of the Local Indian Child Welfare Committee (LICWAC), a group of American Indians who advise social workers in state and private agencies in cases involving the removal of Indian children from their families.
The primary caseworker, who has not notified the tribe that the children are at risk for removal from their home, observes that the parents have not followed through with substance abuse treatment and anger management plans, although the father reported that he has been sober for six months following completion of an alcohol treatment program and that he regularly attends Alcoholics Anonymous meetings. The caseworker adds that a non-Indian family is willing to take all three children and may even consider adopting them. Two of the three children have already been placed in a non-Indian home. The third child, an infant, is with an Indian family.
The therapist who initially tested the children found them mute, unable to relate, and unable to complete simple tasks. One child is hyperactive and has symptoms of fetal alcohol syndrome. The therapist affirms that the children are thriving in their placement and appear to be bonding with the foster parents. Because the biological parents came to therapy only once, she suggests that the parents are not really interested in having their children returned to them. This impression could lay the groundwork for permanent separation.
Several people at the meeting concur with the American Indian representatives, who state that Indian children may respond as described when they feel threatened. Few understand, however, when the possibility is raised that neither the testing nor the treatment included cultural considerations. Rather, they become defensive and attempt to discredit the concept of cultural congruence. As the discussion becomes more hostile, several people complain of the constraints imposed by the ICWA and the political aspects in Indian cases. They declare that their "only interest is in the welfare of the children." One participant even suggests that the act should be ignored in this case, and another questions if Indians value their culture more than their children. The conflicts that permeate this meeting stem from the fact that with the exception of the attorney, the non-Indian participants have virtually no understanding of the ICWA.
Indian Child Welfare Act of 1978
The Indian Child Welfare Act of 1978 became a federal law after 15 years of political struggle by American Indian leaders throughout the nation. By passing the law Congress hoped to prevent the continuing abuses of power by state agencies, the courts, and various church groups in the disruption of Indian families by enacting procedures for the removal and foster placement of Indian children and defining the roles and responsibilities of authority. …