Factors and events leading to the passage of the

Indian Child Welfare Act

Mannes, Marc . Child Welfare ; Arlington Vol.74,Iss.1, (Jan 1995): 264.

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and events that led to the passage of this landmark piece of child welfare legislation.

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The year was 1968 and members of the Devils Lake Sioux Tribe of North Dakota were concerned about the

treatment of American Indian children by local county welfare officials. The children were routinely removed from

their families and placed in foster homes and for adoption with non-Indian couples. To make matters worse, all of

these actions were carried out without consultation with either tribal officials or the Indian community [U.S. Senate

passage of the ICWA can be understood in the context of relevant historical background and contemporary

factors, issues, and activities.

The Effect of European Conquest on American Indian Children and Families

American Indian children are "born into two relational systems, a biological family and a kinship network such as a

clan or band" [Blanchard &Barsh 1980: 351]. Traditionally, American Indian and Alaskan Native children were

"protected in a society in which child-rearing was a community affair, in which behavioral expectations and

discipline were clearly structured and in which children were highly valued" [Cross 1986: 285]. The impact of

European contact with, and eventual dominance of, American Indians was so profound that it affected every

aspect of traditional American Indian society, including child-rearing and family relations. Modes of economic

production and exchange, political expression, and social reproduction between the two societies differed so

home care. From the earliest days of the American republic, one of the primary intents of federal Indian policy was

to eradicate the "Indianness" in young people. As far back as 1819, the Civilization Fund Act provided education for

Indian youths for the purpose of "introducing among them the habits and arts of civilization" [Prucha 1975: 33].

Later, the placement of Indian children in boarding schools served a similar purpose. These schools were a tool of

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federal policy designed to sever parent-child relationships and bring about assimilation. Instead of being returned

to the family during school vacations, young American Indians were placed in the homes of Caucasians under

what was known as the "outing system" [Meriam 1928]. Moreover, when parents would not willingly send their

children away, federal government employees would engage in the practice of "kid catching," forcibly taking the

children to distant schools [Coolidge 1977].

In contemporary times, certain child welfare policies and practices may not have been overtly assimilationist, but

from their people and cultures.

With funding from the U.S. Children's Bureau, Fanshel [1972] showed that the adoptions appeared to meet the

young child's physical and emotional needs and that adoptive parents appeared satisfied. Fanshel, however,

acknowledged that problems could surface as the children entered adolescence, and he questioned the

appropriateness of these placements. Joseph H. Reid, former executive director of CWLA, noted in the foreword to

Fanshel's [1972] research that the interest shown by Caucasian families in adopting American Indian children

prompted states to promote in-state adoptions of these children by Caucasian families. Although this change kept

American Indian adopted children closer to their geographical roots, it still kept them separated from their cultural

roots. During the early 1970s the Standing Rock Sioux, Sisseton-Wahpeton Sioux, three affiliated tribes of the Fort

Berthold Reservation, and the Oglala Sioux Tribes passed resolutions demanding an end to removal practices,

home placement varied from 15.7 times greater in South Dakota to 2.6 times greater in Arizona. The relatively low

differential placement rates for Arizona have to be considered in the context of the large percentage of Indian

children placed in boarding schools. Table 1 summarizes the differential rates determined by AAIA's 1969 study.

(Table 1 omitted)

Subsequent studies by AAIA in 1974, and again in 1976 at the request of the American Indian Policy Review

Commission (AIPRC), found similar disparities in placement rates. A task force submitting a final report to AIPRC

also confirmed the large percentage of Indian children in non-Indian family foster care and adoptive placements

[Task Force Four 1976]. Extreme poverty, prejudice, discrimination, and cultural misunderstanding were cited by

Indian advocates as the reasons for both higher placement rates and transracial placements [Unger 1977].

Policy and Practice Consequences for American Indian Children and Parents

defining their eventual place in the social order, and helping shape and mediate all family members' definitions of

themselves as individuals. Cumulatively, assimilationist, removal, and transracial placement policies and practices

have been extremely damaging to the viability of American Indian and Alaskan Native culture and corrosive to

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Indian youngsters' development of strong personal identities. They have also undermined the establishment and

maintenance of positive behavioral dynamics and healthy emotional relationships among family members [U.S.

Senate Hearings 1974].

Promoting Understanding of Indian Child Welfare Problems and Building Support for Action

AAIA staff members quickly learned that the circumstances in North Dakota were being repeated in other

jurisdictions. They initiated public awareness and information activities and also established communication with

Hearings 1974]. Byler noted in his opening statement that "as sad and as terrible as the conditions are that Indian

children must face as they grow up, nothing exceeds the cruelty of being unjustly and unnecessarily removed from

their families" [U.S. Senate Hearings 1974: 95].

In addition to the press conference, a mechanism for regular communication of information was deployed. After

using its general newsletter for several years to generate and disseminate information, in 1974 AAIA began to

publish "Indian Family Defense," a newsletter devoted exclusively to Indian child welfare concerns [Unger 1977].

This sent a steady flow of Indian child welfare information into public policy and professional channels.

Responding to the Problems

Developing Tribal Government Child Welfare Capacity

In one of its initial efforts, AAIA helped the Devils Lake Sioux community establish a tribal child welfare board that

In general, tribal government has endured a long history of federal judicial doctrine, derived from two U.S. Supreme

Court decisions that solidified tribal self-governing capacity but limited sovereignty. In Cherokee Nation v. Georgia

[1831], the Court defined the legal and governmental status of the Cherokee Nation (and subsequently applied it to

other tribes) as a "domestic dependent nation." In Worcester v. Georgia [1832], the Court established that the U.S.

Congress had plenary power over Indian affairs.

Despite the sanctioning of limited sovereignty, the modern expression of tribal government remained relatively

dormant for a century until 1934, when the passage of the Wheeler-Howard Act (Indian Reorganization Act)

included encouragement for tribes to adopt a constitution and bylaws [Cohen 1982]. With the proliferation of

federal programs as a result of the 1960s war on poverty and the Great Society initiatives, tribal governments

increasingly administered human service oriented projects [Mannes 1990]. AAIA staff members, federal officials,

and families, and the mix of providers varied greatly from one locale to another [Office of Human Development

1976]. State and county governments, federal agencies such as the BIA and the Indian Health Service, private

agencies, and certain tribes were all serving Indian people living either on reservations or in urban areas. The

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number of players complicated the possibility of cooperation.

In 1970, the federal Social and Rehabilitative Services Agency (SRS), the organizational unit within which the U.S.

Children's Bureau was housed at the time, instructed state child welfare agencies to follow the directives

contained in tribal court orders that involved Indian children on reservations. It also reaffirmed the SRS position

that federal child welfare financial assistance programs should be administered statewide and include

reservations [Office of Human Development 1976].

tribal governments as lacking the ability to maintain effective "separation of powers" [Office of Human

Development 1976]. For example, state officials believed that tribal administrative processes, judicial deliberations,

and decision-making were not structurally insulated from legislative and political practices. The potential intrusion

of politics into tribal judges' decisions was noted as a major impediment to impartiality. With most tribal judges

lacking legal training and few tribal judicial codes addressing children's issues, tribal court actions lacked

legitimacy in the eyes of state officials. Consequently, tribal court orders were mostly ignored and tribal courts

were often not informed by the state/county agency of cases where they ought to have jurisdiction, or when

placement decisions and actions affecting Indian children and families were made by state courts. Also, states'

inability to tax Indian lands and income made them resist covering the costs of providing any social services on

federally recognized tribes' reservations located within their borders [Office of Human Development 1976].

reservation-based child welfare entities or license an intermediary such as a tribal council or the BIA to actually

provide services on a reservation [Center for Social Research and Development 1975].

The passage of Public Law 83-280 created the basis for additional legal complexities in North Dakota. Passed by

Congress in 1953, the law reduced the range of tribal government sovereignty by permitting certain states to

assume criminal and civil jurisdiction over reservations contained within their boundaries [Cohen 1982]. In 1963,

when North Dakota assumed civil jurisdiction under P.L. 83-280, it determined that its authority could be applied

only with tribal or individual Indian consent. Following this limited interpretation of state authority in response to

the federal law, the North Dakota Supreme Court decided in 1963 that there was no basis for a positive ruling on a

petition to terminate the parental rights of Indian parents living on the reservation, since the parents had not

consented to the state's assumption of jurisdiction [Center for Social Research and Development 1975].

and services [Center for Social Research and Development 1975]. Prevailing case law, based on the principle of

equal protection, made it clear that Indian people were fully entitled to these benefits [Center for Social Research

and Development 1975].

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In Dandridge v. Williams [1970], the U.S. Supreme Court determined that state classifications among people for

social welfare based on nationality or race are "inherently suspect" and must pass a "strict scrutiny" test that

demonstrates that the classification is essential to meeting a compelling state interest. The key legal issue

became: Did a state's refusal to provide services and to license child welfare agencies or foster homes on

reservations, based on arguments such as tribal sovereignty and the failure of Indians to pay state taxes,

demonstrate a "compelling state interest" [Office of Human Development 1976]?

Legislative Action

Setting the Stage

Senate oversight hearings to address Indian child placement matters were eventually held during the Second

Session of the 93rd Congress on April 8th and 9th of 1974 [U.S. Senate Hearings 1974]. Senator James Abourezk

from South Dakota, Chairman of the Subcommittee on Indian Affairs, ran the hearings and served as patron.

American Indian witnesses recounted their personal stories. The following exchange between Margaret Townsend

of Fallon, Nevada, whose children were removed and placed in a family foster home, and Senator Abourezk, was

indicative of the tone and substance of personal accounts.

Senator Abourezk: Is there anything else that you would like to say to the committee?

Mrs. Townsend: I think that most Indian women are overwhelmed by people who think their children should be

Dakota, explained how she was asked by the state welfare staff to place her unborn child for adoption. The story of

Don James Morrison, relayed by Mel Sampson, conveyed the anguish of an Indian youth living with Caucasian

adoptive parents. Betty Jack, who chaired the Board of Directors of the American Indian Child Development

Program in Wisconsin, told the committee about how her children were removed by state authorities. Mental

health professionals gave detailed testimony on the psychological and social toll associated with extensive out-of-

home placements, and the cumulative impact on tribal culture [U.S. Senate Hearings 1974].

Passage of the Legislation

Under the direction of staff attorney Bertram Hirsch, AAIA had produced a set of recommendations for Congress

that were entered into the 1974 Senate Hearing records. Blanchard [1977] noted that Senator Abourezk asked AAIA

to prepare an Indian child welfare bill, which he then introduced on August 27, 1976 as S. 3777, the Indian Child

Church was concerned that certain portions of the private placement section of the bill would eliminate their LDS

Indian Student Placement Program. The program placed LDS Indian children between the ages of eight and 18 for

at least one school year with an Anglo-Mormon family to receive "educational, social, and leadership opportunities

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that were lacking on the reservation" [U.S. Senate Report 1977: 200]. A number of witnesses, including American

Indian members of the LDS Church who lived with these families, attested to the virtues of the program. This

testimony was in marked contrast to a state-of-the-field study of Indian child welfare conducted during 1975 and

1976, which questioned the benefit of Indian student participation in the LDS program [Office of Human

Development 1976].

The federal departments believed that S. 1214 was not needed because another national child welfare bill, S. 1928

was passed by the Senate the next day. In the House, S. 1214 was referred to the Committee on Interior and

Insular Affairs, and its Subcommittee on Indian Affairs held hearings on the bill. In addition to written comments

and testimony regarding S. 1214 presented at the House hearings, a set of recommendations had been provided

by AIPRC's Task Force Four, which had examined Indian child placement issues. S. 1214 was amended and a

substitute bill was introduced by Representative Morris Udall of Arizona as H.R. 12533 [U.S. House of

Representatives Report 1978].

Several major differences between the Senate and House versions of the Indian child welfare bill are worth noting.

The House bill affirmed Congressional authority over Indian child welfare in response to questions of

constitutionality raised by the U.S. Department of Justice. The underlying principle of H.R. 12533 was based on

what was in "the best interest of the Indian child," even though the principle was acknowledged as being vague.

legislation had not been subjected to thorough review and analysis [U.S. House of Representatives Report 1978].

Also, according to Representative Marlenee, groups such as the Montana Department of Social and Rehabilitation

Services and the National Council of State Public Welfare Administrators, who had seen the bill and had questions

about funding and jurisdiction, had not been given sufficient time to air their questions. This dissenting view had

minimal effect on the movement of the proposed statute, and on June 21, 1978, the full House Committee on

Interior and Insular Affairs chose to mark up H.R. 12533 instead of S. 1214 [U.S. House of Representatives Report

1978]. On October 14, 1978 the House passed H.R. 12533, and on the following day the Senate accepted the House

version.

The Indian Child Welfare Act (ICWA) became Public Law 95-608 on November 8, 1978. Title I of the legislation

affirmed tribal governments' authority to assume jurisdiction over child custody placement proceedings involving

A Postscript to the Indian Child Welfare Act's Passage

According to Kessel and Robbins [1984], the ICWA generated controversy and misunderstanding within the social

service community that undermined its intended impact. Fischler [1980] argued that the passage of the ICWA

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jeopardized American Indian children because placement priorities emphasized parental and tribal rights at the

expense of child protection; for example, a high standard of evidence was required to document harm to a child.

American Indians and Alaskan Natives saw things differently. For Blanchard and Barsh [1980], the ICWA had

addressed the fundamental issue of cultural preservation.

With enactment of the Indian Child Welfare Act, the federal government responded affirmatively to the petition of

American Indians that their way of life be allowed to continue. At issue is not tribal right versus individual right, but

agreements with tribes. Public agencies appeared to be providing Indian children with the permanency and case

review safeguards spelled out in the Adoption Assistance and Child Welfare Act of 1980. But public agencies were

cited for still not providing Indian placements for many Indian children in out-of-home care, and the federal

government was faulted for its limited efforts to convey performance standards and monitor and enforce

compliance.

The study also identified a continuing excessive placement rate for American Indian and Alaskan Native children.

Data indicated that placements for American Indian children had increased about 25% since passage of the ICWA,

and that tribes administering child welfare programs seemed to be the major contributors to the increasing flow of

Indian children into out-of-home care. Mannes [1993] suggests this is, in part, a result of the first generation of

post-ICWA programs emphasizing culturally appropriate placements at the expense of placement prevention

welfare programs available one year and gone the next.

Societal identification and conceptualization of child welfare problems and the sanctioning of specific child

welfare responses change over time, and these shifts can have important implications for Indian child welfare. One

can only speculate what the impact of apparently eroding public opposition to transracial adoptions and the

recently passed Multiethnic Placement Act (P.L. 103-382) might have on a future reauthorization of the ICWA. As

Gordon [1988] asserts, an ever-changing mix of social moods, economic forces, legislative enactments, and

political movements determines the answers to questions such as: What is labeled as unacceptable family

behavior? What aspects of family problems are to be addressed? and What will be the form and substance of

society's interventions? The responses to American Indian and Alaskan Native children and families by the second

generation of post-ICWA programs will be largely shaped by how these questions are answered.

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Fanshel, D. (1972). Far from the reservation: The transracial adoption of American Indian children. Metuchen, NJ:

The Scarecrow Press, Inc.

Mannes, M. (1993). Seeking the balance between child protection and family preservation in Indian child welfare.

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Office of Human Development. (1976). Indian child welfare: A state-of-the-field study (OHD 76-30095). Washington,

DC: U.S. Department of Health, Education and Welfare, Children's Bureau.

Plantz, M.C., Hubbell, R., Barrett, B.J., &Dobrec, A. (1988). Indian child welfare: A status report--Final report of the

survey of Indian child welfare and implementation of the Indian Child Welfare Act and section 428 of the Adoption

Assistance and Child Welfare Act of 1980. CSR Incorporated and Three Feathers Associates (10-82-1602).

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children in foster homes to prevent the breakup of Indian families and for other purposes. Washington, DC: U.S.

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problems are affected by federal action or inaction. Washington, DC: U.S. Senate Subcommittee on Indian Affairs

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Committee on Indian Affairs.

Marc Mannes, Ph.D., is Child Welfare Program Specialist, U.S. Children's Bureau, Washington, DC.

DETAILS

Social research; Social conditions &trends; Native Americans; Legislation; History;

Child welfare

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