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Center for Advanced Studies in Child Welfare

Center for Advanced Studies in Child Welfare

'Best interests of the Indian child' - in whose eyes?

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A former Oklahoma foster parent is pursuing legislative changes to state and federal Indian child welfare laws in response to a personal experience she had in which her two former foster children lived with her for three months before being placed in a tribal foster home. She is concerned that the law would require such a move based only on the children's Native heritage, and that multiple placements, particularly those in which the end result is "not an improvement" from the original placement, are harmful to the children. She wants such laws to look at the best interests of the child over the best interests of the tribe.

Two readers made comments on this article that I thought were worth noting:

  • "It should have said: 'Best interest of the child in the eyes of the non Indians'"
  • "This is a one-sided article that makes absolutely no attempt to talk to members of Oklahoma's tribal nations about their feelings towards the law or the reason for it."

In whose eyes are we determining what the best interests of the child are?

One of the main points I took home from the 2011 Summer Institute in American Indian Child Welfare was that the child and the child's tribe are inextricably linked:

  • Through the child, the tribe continues its way of life, including its traditions, values, beliefs, and knowledge.1
  • Through the tribe, the child learns personal and collective identity.2

As harmful as it is to the tribe to remove the child, it is seen as equally (if not more) harmful to the child to deny the child the right to the child's identity and culture. Thus, child well-being in terms of the child's best interests is meant to include the child's connection and relationship with the child's tribe.

Provided that the original foster placement ensured child safety and well-being, the abrupt placement change after three months of stability was of course unnecessary and may very well have had harmful effects on the children involved. However, the actual language within the applicable laws does not appear to be the issue; rather, it seems that the issue lies with timely compliance of the applicable laws.

As you read articles such as the one I mentioned in this post, thoughtfully consider the perspectives of all parties involved and the false perception that tribal and child best interests are mutually exclusive. Think about the events that set the stage for a law like the federal Indian Child Welfare Act of 1978: Is it ICWA reform that is needed, or better support for agency and personnel compliance with ICWA?

  • 1"For American Indians, the extended family is the primary means by which their culture is maintained and developed...It was recognized that there exists 'no resource that is more vital to the continued existence and integrity of Indian tribes than their children' (Indian Child Welfare Act of 1978, 25 U.S.C. § 1901(3))." Guerrero, M. P. (1979). Indian Child Welfare Act of 1978: A response to the threat to Indian culture caused by foster and adoptive placements of Indian children. American Indian Law Review, 7(1), 59.
  • 2"It is through relationship with family, elders, tribal community, and culture that the Indian child's sense of permanence and identity is protected (25 U.S.C. ยง 1901 et seq.)." Purpose of ICWA:
    • Protect Indian children
    • Preserve and strengthen Indian families
    • Ensure permanency for Indian children
    • Protect the continuing existence of Indian cultures
    • Ensure that tribes can exercise their sovereign authority over child custody proceedings
    National Indian Child Welfare Association. (n.d.). What is ICWA's purpose? Retrieved from http://www.nicwa.org/icwa/intro/intro_04.asp

3 Comments

Heidi:

I have to disagree that the language in ICWA is not problematic. You state, "Provided that the original foster placement ensured child safety and well-being, the abrupt placement change after three months of stability was of course unnecessary and may very well have had harmful effects on the children involved. However, the actual language within the applicable laws does not appear to be the issue."

The problem is that in many states, including Minnesota, the question of whether the change in placement would be harmful cannot be litigated without tribal objection. That is because "good cause" to deviate from the placement preferences is not defined by the ICWA, and many state courts refuse to allow the issue of the child's best interests to be litigated. Of course, tribes can argue that the best interests are inherently biased, but that is an issue in the law goes to bias, and not to admissibility.

Mark

Heidi, your response is typical of what the pro-ICWA crowd says whenever anyone dares suggest we put a child's need for stability and permanency above a tribe's "interest in its children."

My sons are 6% Indian. They do not see themselves as Indian, nor have they ever. They grew up 1500 miles from the reservation where one of their sixteen great-great grandparents once lived. Still, several months after they went into foster care, their tribe declared that they were eligible for membership. In spite of the tribe's ignorance of their existence before they entered foster care, and their tribe's inaction and failure to help them when they were homeless four and five year-old boys, everyone began to see them strictly as Indian children after they became a part of the system. Their tribe fought hard to have them removed from our home. The tribe lost.

Our sons are still eligible for membership, and we have graciously invited the tribe to be involved in their lives since their adoption. We have done many things to connect our sons to that aspect of their heritage. We even visited the reservation, which I repeat, is 1500 miles from our home (and in the middle of nowhere). The tribe has completely ignored them. Not a single word of correspondence from them.

Don't tell me this is about tribes being concerned about maintaining connections with their children. Our case is like many others. Our sons' tribe doesn't care at all about my sons. In turn, my sons don't care about their tribe and I, for one, have long since stopped encouraging them to learn more about their Indian heritage.

If you want to blame anyone for my sons' disdain for their tribe, blame the tribe.

You speak as if these children have no other ethnicity in their blood. You completely overlook the trauma, pain and suffering this law ensues on children, families and communities (Native and non-Native) every day. Get your head out of the sand! THIS LAW IS HURTING PEOPLE! Two wrongs don't make a right.

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