Historical Factors Influencing Child Abuse and Neglect in Indian

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Historical Factors Influencing Child Abuse and Neglect in Indian Powered By Docstoc
					Impacts of Child Maltreatment in Indian Country: Preserving the Seventh Generation
                through Policies, Programs, and Funding Streams




                                  Delores Subia Bigfoot
                               Thomas Crofoot, MSW, PhD
                           Terry L. Cross, MSW, ACSW, LCSW
                                    Kathleen Fox, PhD
                                    Sarah Hicks, MSW
                                       Linda Jones
                                    Gordon Limb, PhD
                                  John Red Horse, PhD
                                  David Simmons, MSW
                                       Jack Trope
                                                                      TABLE OF CONTENTS


ACKNOWLEDGEMENTS ......................................................................................................................... 4
EXECUTIVE SUMMARY .......................................................................................................................... 6
INTRODUCTION..................................................................................................................................... 35
   Historical Factors Influencing Child Abuse and Neglect in Indian Communities ................................ 42
      Abstract ............................................................................................................................................ 42
      Introduction ...................................................................................................................................... 44
      History of Major Policy/Legislative Influences on Child Abuse and Neglect in Indian Country ....... 45
   Tribal-State Relationships: Implications for Child Welfare Service Delivery to American Indian/Alaska
               Native Children and Families ................................................................................................. 58
      Abstract ............................................................................................................................................ 58
      Introduction ...................................................................................................................................... 59
      Background ...................................................................................................................................... 59
      Contemporary Tribal-State Relations .............................................................................................. 62
   Data Issues Regarding Abuse and Neglect of American Indian/Alaska Native Children ................... 85
      Abstract ............................................................................................................................................ 85
      Introduction ...................................................................................................................................... 86
      Where Do Data on Abuse and Neglect Come From? ..................................................................... 86
      What Are the Key Issues Around the Collection of Data on Abuse and Neglect from Indian
                  Country? ............................................................................................................................. 91
      Strengths of Models that Demonstrate Success ........................................................................... 100
      Barriers/Challenges to Addressing Key Issues ............................................................................. 103
   Effects of Abuse and Neglect on American Indian/Alaska Native Children ...................................... 109
      Abstract .......................................................................................................................................... 109
      Story       110
      Introduction .................................................................................................................................... 111
      Background .................................................................................................................................... 111
      Child Abuse and Neglect Defined .................................................................................................. 112
      Effects of Institutional Abuse ......................................................................................................... 119
      Factors Related to Child Abuse and Neglect ................................................................................. 122
      Other Factors Related to Child Abuse and Neglect....................................................................... 124
   Child Abuse and Neglect Prevention in Indian Country .................................................................... 143
      Abstract .......................................................................................................................................... 143
      Community-Based Prevention ....................................................................................................... 147
   Child Protection Systems in Indian Country ...................................................................................... 160
      Abstract .......................................................................................................................................... 160
      Introduction .................................................................................................................................... 161
      Background .................................................................................................................................... 162
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Child Sexual Abuse in Indian Country ............................................................................................... 183
   Abstract .......................................................................................................................................... 183
   Introduction .................................................................................................................................... 184
   Definitions of Sexual Abuse ........................................................................................................... 184
   Incidence of Child Sexual Abuse in Indian Country....................................................................... 186
   Characteristics of Offenders .......................................................................................................... 189
   Characteristics of Victims of Sexual Abuse ................................................................................... 192
   Barriers to Prevention, Recognition, and Treatment of Sexual Abuse .......................................... 194
   Initiatives to Address Sexual Abuse in Indian Country .................................................................. 197
Sovereignty, Cultural Competency, and Family Preservation ........................................................... 208
   Abstract .......................................................................................................................................... 208
   Introduction .................................................................................................................................... 208
Foster Care and Permanency Issues for American Indian/Alaska Native Families and Children .... 226
   Abstract .......................................................................................................................................... 226
   Introduction .................................................................................................................................... 227
Tribal Courts and Jurisdiction in Child Welfare ................................................................................. 251
   Abstract .......................................................................................................................................... 251
   An Overview of Jurisdiction ........................................................................................................... 252
Child and Family Systems Integration in Indian Country .................................................................. 279
   Abstract .......................................................................................................................................... 279
   Introduction .................................................................................................................................... 280
   Chapter 2: Tribal/State Relations................................................................................................... 293
   Chapter 3: Data Issues Regarding Abuse/Neglect of American Indian/Alaskan Native Children . 296
   Chapter 4: Effects of Abuse and Neglect on American Indian/Alaskan Native Children ............... 297
   Chapter 5: Child Abuse and Neglect Prevention in Indian Country............................................... 302
   Chapter 6: Child Protection Systems in Indian Country ................................................................ 303
   Chapter 7: Child Sexual Abuse...................................................................................................... 308
   Chapter 8: Family Preservation ..................................................................................................... 310
   Chapter 9: Foster Care and Permanency ...................................................................................... 312
   Chapter 10: Jurisdictional Issues ................................................................................................... 318
   Chapter 11: Services Integration ................................................................................................... 319




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                                         ACKNOWLEDGEMENTS


           This project could not have been completed without the help of several key individuals.
The National Indian Child Welfare Association (NICWA) would first like to thank Larry Blair, BIA
division of social services chief, for his guidance throughout the project. In addition, Karen Funk,
legislative specialist at Hobbs, Straus, Dean, & Walker, LLP, offered valuable assistance by
serving as a consultant to several authors. NICWA is also extremely grateful for assistance from
the following people, who volunteered their time and expertise to serve as external reviewers of
the document:
          Stella Charles, Northwest regional social worker, Bureau of Indian Affairs
          Dr. Shirley Dobbin, assistant director for research and development, Department of
           Permanency Planning for Children, National Council of Juvenile and Family Court Judges
          Craig Dorsay, attorney at law
          John George, senior consultant, Child Welfare League of America
          Tom Hay, project manager, National Resource Center for Child Welfare Data and
           Technology
          Mark Lewis, executive director, Tohono O‘odham Nation Department of Human Services
          Dr. Art Martinez, clinical psychologist, Sacramento Urban Indian Health
          Mary Mc Nevins, Indian child welfare manager, Oregon Department of Human Services
          Mary Mentaberry, director, Department of Permanency Planning for Children, National
           Council of Juvenile and Family Court Judges
          Don Milligan, program manager, Small Tribes of Western Washington
          BIA regional social workers


           Additionally, NICWA would like to thank internal staff members who provided assistance
in the completion of the project. For providing feedback on specific chapters, we would like to
extend much appreciation to the following people:
Jody Becker-Green, research coordinator
Jaime Gault, research assistant
Andy Hunt, director of community development for children‘s mental health;
Nadja Jones, director of information and training
Carolyn Maple, interim director of community development for child welfare services
David Simmons, director of government affairs and advocacy


All of these individuals were instrumental in moving the project forward, as they served important
editorial functions.

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           NICWA would like to express our gratitude to Chey Clifford-Stoltenberg, NICWA senior
government affairs associate, who, with the help of Jody Becker-Green, Jaime Gault, and David
Simmons, coordinated the development and finalization of this project and served as an
additional editor. Finally, James Walker, NICWA logistics assistant, dedicated countless hours of
his time to formatting, editing, and proofing the document. We are grateful for the commitment of
all of these individuals. Their assistance has enabled NICWA to develop a useful publication that
we hope will improve the lives of Indian children, families, and communities.




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                                       EXECUTIVE SUMMARY


                                             Introduction


           Child protection and family support are two of the most significant tasks designated to the
federal government and to tribal and state governments. American Indian/Alaska Native families
often have more exposure to risk factors that contribute to child abuse and neglect than other
racial groups. Therefore, the need for appropriate child protection services in tribal communities is
particularly vital.
           In the FY 2003 Omnibus Appropriations Conference Report, Congress directed the
Bureau of Indian Affairs (BIA) to develop a study examining child welfare within American
Indian/Alaska Native communities. In order to complete this task, the BIA entered into a contract
with the National Indian Child Welfare Association (NICWA) to conduct a comprehensive study
that examines overall child welfare issues in Indian Country. The study details the adverse effects
of child abuse and neglect on American Indians/Alaska Natives and also documents and critiques
the current status of the policies, systems, funding streams, and child welfare practices currently
in place. In addition, recommendations for systems change that will enhance child protection in
Indian Country are provided.
           This groundbreaking work, developed by leading researchers and practitioners in the
field, is the first comprehensive national examination of child abuse/neglect and child welfare
services for American Indian/Alaska Native children and families ever produced. The overall goal
is that this document will inform tribal leaders, state lawmakers, students, program administrators,
and others, thus resulting in better services and improved outcomes for tribal children, families,
and communities.


 Chapter 1: Background and History of Tribal Child Abuse and Neglect—Kathleen A. Fox,
                                                  PhD


           Various federal policies regarding child abuse and neglect have affected American
Indian/Alaska Native children and have also indirectly affected Canadian First Nations and Metis
Indian children. These policies are a result of a long, interactive history between Indians and non-
Indians, which can be broken down into three major periods: 1) forging a relationship (1492-
1830s); 2) allotment and assimilation (1830s-1960s); and 3) Indian community resurgence
(1960s-present).


Forging a Relationship 1492-1830s

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           Early travelers to North America encountered millions of long-established indigenous
people. Although settlers originally developed respectful relationships with them, these
relationships were soon tested and broken as the number of arriving settlers increased. Early
contact, which was fraught with sickness, treachery, heartbreak, and death for indigenous people,
was soon characterized as a period of genocide.
           Later on, the United States defined Indian Nations as ―sovereign‖ in the U.S. Constitution,
meaning they had the ability to govern themselves. This sovereign status, however, was ignored
in many of the future policies passed by the federal government, including the Civilization Fund
Act of 1819—a policy aimed at assimilation. Additionally, Congress ignored tribal sovereignty with
the passage of the Indian Removal Act of 1830, thus granting power to the U.S. President to
remove ―any tribe or nation of Indians now residing with the limits of any of the states or
territories‖ to uninhabited land ―west of the river Mississippi‖ (Jahoda, 1995). As evidenced by
these policies, these new European inhabitants began viewing tribes as separate but dependent
nations that could benefit society only when fully assimilated or removed completely.


Allotment and Assimilation 1830s-1960s
           From the 1830s-1890s, incursions on Indian rights and lands remained widespread. In
1887, the Dawes Act authorized the U.S. President to allot portions of reservation land to
individual Indians who could then sell it to non-Indians. This policy led to a drastic decrease in the
total amount of Indian lands, thus further eroding tribal communities. Fortunately, the Indian
Reorganization Act (IRA) of 1934 ended the practice of allotment and authorized the federal
government to return surplus lands to the tribes. It also authorized tribes to adopt constitutions
and governments that followed the U.S. pattern of divided executive, legislative, and judicial
branches and allowed for election of leaders.
           Apart from taking direct action regarding tribal structure and governance, in 1878 the
federal government also continued steps to acculturate Indian children by establishing off-
reservation boarding schools. Indian children were often forced to attend these schools, where
they were punished for practicing their traditional beliefs and customs. Later, in 1958, Indian
children were also forcibly removed from their homes and placed for adoption with non-Indian
families through the Indian Adoption Project. This project resulted in 395 American Indian children
being displaced from their families and tribal communities.
           During the 1950s, the desire to fully assimilate tribes resulted in three additional policies
or activities, including: 1) the Termination Act of 1953, which severed tribal ties to the federal
government, converted tribal lands to private ownership, and subjected tribal members to state
laws; 2) the relocation efforts of the Bureau of Indian Affairs, which offered grants to Indians who
would seek work in metropolitan centers; and 3) Public Law 83-280, which granted states civil
and criminal jurisdiction over all American Indian/Alaska Native people residing there.


Indian Community Resurgence 1960s-Present
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           From the 1960s on, Congress, while recognizing its role in safeguarding the welfare of
American Indian/Alaska Native people, has primarily supported the self-determination and
viability of tribes. Three major policies—the Indian Civil Rights Act of 1968, the Indian Self-
Determination and Education Assistance Act of 1975, and the Indian Child Welfare Act of 1978—
are reflective of this support. These policies allowed tribes to reassert jurisdiction and take more
control over tribal interests, including tribal children.
           Several laws that were passed from 1980 to 1997, such as the Adoption Assistance and
Child Welfare Act and the Adoption and Safe Families Act, both positively and negatively affect
the field of Indian child welfare on a daily basis. The modern era, however, has seen a return of
Indian sovereignty benefiting tribal child welfare programs and services.


  Chapter 2: Tribal-State Relationships: Implications for Child Welfare Service Delivery to
            American Indian/Alaska Native Children and Families—Sarah Hicks, MSW


           Because of the direct federal government to tribal government relationship, historically,
tribal-state interaction has been limited. The direct tribal relationship with the federal government
led to the sense that there was little role for state governments in tribal affairs. Although states
have no authority to pass laws that interfere with the federal-tribal relationship, the development
of tribal-state relationships is critical to providing appropriate services to Indian children and
families. Additionally, with the increase of federal devolution also comes the need for increased
intergovernmental coordination and cooperation among state, county, and tribal governments.


Policy, Funding, and Provision of Child Welfare Services: The Role and Impact of Tribal-
State Relationships
           General federal Indian policy has certainly had a dramatic influence on tribal-state
relationships, and therefore, has influenced Indian child welfare programs and services. The main
federal Indian policies that have affected tribal-state relationships include the Dawes General
Allotment Act, Public Law 83-280, the Indian Self-Determination and Education Assistance Act,
and tribal self-governance initiatives.
           Beyond federal Indian policy, general federal child welfare policy also affects tribal-state
relationships in the area of Indian child welfare. The federal government did not recognize state
and local government responsibility for child welfare until 1935, when Title IV-B was included in
the Social Security Act. Additionally, it was not until the passage of the Child Abuse Prevention
and Treatment Act (CAPTA) of 1974 that the federal government enacted legislation that had a
significant impact on child welfare services and child protection (National Clearinghouse on Child
Abuse and Neglect Information, 2003). Several other federal child welfare policies followed
CAPTA, including the Indian Child Welfare Act (ICWA) of 1978, the Prevention, Adoption, and
Family Services Act of 1988, the Indian Child Protection and Family Violence Prevention Act
(ICPFVPA) of 1990, and the Adoption and Safe Families Act (ASFA) of 1997.
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           In addition to federal policy, several states have their own Indian child welfare laws,
which affect tribal-state relationships in their own way. These types of state laws have given
tribes and the state the opportunity to dialogue about Indian children, the services they need, and
the placements that they require. Also, these state laws give more specific direction as to the
local implementation of federal child welfare laws, such as ICWA. Finally, state Indian child
welfare laws signal to the state that Indian children are important and require unique protections.
           In addition to general federal and state policies, funding access affects Indian child
welfare programs and services as well as each tribe‘s ability to serve its members. Tribal access
to several federal funding sources, including Title IV-B, Title IV-E, Title XX, TANF, and Medicaid,
is extremely limited. Based on the minimal funding that tribes receive, tribal-state relationships
are critical to making fundamental resources accessible to American Indian/Alaska Native
children and families.


Mechanisms and Models of Intergovernmental Relationships to Facilitate Improved Child
Welfare Services to American Indian/Alaska Native Children
           Tribes and states have identified a variety of mechanisms and models to improve
intergovernmental relationships and to provide more accessible, culturally relevant, and/or more
effective services to American Indian/Alaska Native children and families. These mechanisms
include, but are not limited to: 1) coordinating internal tribal child welfare resources; 2) engaging
in discussions about key child welfare issues such as ICWA implementation or child
abuse/neglect investigations; 3) educating one another on respective perspectives regarding key
issues; 4) negotiating respective governmental responsibilities; and 5) developing cooperative
strategies for intergovernmental relationships and service delivery agreements.
           It is extremely important for tribes and states to utilize these successful mechanisms and
models to develop and maintain positive relationships with one another. Poor tribal-state
relationships can negatively affect the prevention and treatment of child abuse and neglect on
Indian lands. With the federal government serving a supporting role, tribal-state relationships can
be successfully developed and improved. When tribes and states are unwilling or unable to
develop cooperative relationships, it is children and families who suffer the most.


 Chapter 3: Lack of Data Regarding Abuse and Neglect of American Indian/Alaska Native
                                     Children—Kathleen Fox, PhD


           The actual number of American Indian/Alaska Native children who are abused or
neglected is not known. Yet excessively high rates of abuse/neglect in Indian Country have been
cited in national reports. The U.S. Department of Justice reported in 1999 that, on a per capita
basis, "1995 data indicate about one substantiated report of a child victim of abuse or neglect for
every 30 American Indian children age 14 or younger" compared to a national rate of one incident
for every 58 children of any race (DOJ, 1999). In 2000, the Child Welfare League of America
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(CWLA) reported that American Indian/Alaska Native children represent 1.6% of substantiated or
indicated child abuse and neglect cases (CWLA, 1999); in 2003, the U.S. Department of Health
and Human Services (DHHS) reported an increase in the difference between population and
percentage of victims by stating that American Indian/Alaska Native children represented 2% of
all victims (U.S. DHHS, 2003).
           This data came from information obtained through the National Child Abuse and Neglect
Data System (NCANDS). Because data in the NCANDS are collected almost exclusively by state
or county child protective workers, and research has shown that these workers are involved in
only approximately 61% of tribal abuse/neglect cases (Earle, 2000), these findings would lead to
the conclusion that data on abuse/neglect of American Indian/Alaska Native children are under-
reported (Fox, 2003). Other issues, however, such as the definition of child abuse/neglect and the
process for counting incidents of abuse/neglect in NCANDS would lead to the opposite
conclusion—that numbers of American Indian/Alaska Native abuse and neglect cases in the
NCANDS are artificially high.


Where Do Data on Abuse/Neglect Come From?
           Data on abuse/neglect come from several sources, including federal agencies, states,
private organizations, and universities. The primary source of information on the abuse and
neglect of American children is NCANDS, which is maintained by the Children's Bureau of DHHS.
There are other sources of data on American Indian/Alaska Native children, however, which may
provide additional information on child abuse and neglect, such as the Bureau of Indian Affairs
(BIA), the Indian Health Service (IHS), the Federal Bureau of Investigation (FBI), and agencies,
organizations, universities, or individuals concerned with the topic. Many tribes also collect their
own data, but much of this is in paper files and difficult to aggregate. Other tribes eschew
numbers and rates in favor of anecdotal evidence regarding the wellness of their children.
Additionally, some tribes use performance indicators rather than raw figures of abuse/neglect to
gauge the success of their child protective work, and others use true outcome data, looking not at
the numbers of cases but how they turn out to measure success.


What Are the Key Issues Around the Collection of Data on Abuse/Neglect from Indian
Country?
           The key issues in the reporting of data on the abuse and/or neglect of American
Indian/Alaska Native children include the following:


    1. Measurement of abuse and neglect: Certain measurement techniques have been found
           to produce inaccurate and misleading statistics regarding American Indian/Alaska Native
           children. This conclusion is based on definitions of who is or is not Indian, what
           constitutes child abuse/neglect based on different cultures and understanding, how data
           is analyzed and collected, and an overlap in data collection from tribal communities.
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    2. How data are used: Currently, data on the abuse and neglect of American Indian/Alaska
           Native children are used primarily y agencies concerned about Indian child welfare, and
           by the tribes themselves. Due to the limitations of child maltreatment data for tribal
           communities, it is rarely used by Congress to set policies and to address issues of
           maltreatment in Indian Country.
    3. Responsibility for the data: As stated earlier, the data on American Indian/Alaska Native
           children in the NCANDS are inaccurate, and this problem has not yet been addressed.
           The BIA, which is the primary oversight agency for tribes, does not have a mandate to
           compel sovereign tribes to report data on the abuse and neglect of children. Also,
           resources and written policies and procedures to accompany the Indian Child Protection
           and Family Violence Prevention Act of 1990 (P.L. 101-630), which would facilitate the
           collection of these data, have not been produced. Other federal agencies have limited
           responsibility for partial data on the abuse and neglect of children that fall within their
           mandates, and there is no way to combine the various reports from these disparate
           agencies.


Strengths of Models that Demonstrate Success
           There are several characteristics of successful models for collecting data on child abuse
and neglect. These include the following:


    1. Developing good tribal-state relationships through sharing of information, developing
           state-tribal agreements, and having only one group responsible for the investigation of
           abuse and neglect (whether county, tribe, BIA, or a tribal consortium)
    2. Developing a model tribal child abuse/neglect reporting system that incorporates aspects
           of tribal sovereignty, culturally appropriate definitions for child abuse/neglect, and a focus
           on strengths-based philosophies



Barriers/Challenges in Addressing Key Issues
           Current problems in data collection from Indian Country continue to interfere with
obtaining accurate statistics needed by tribes, policymakers, and organizations serving American
Indian/Alaska Native youth and families. Although some of these problems have been identified,
major barriers to developing a tribal data collection system still exist. These are in the areas of
definitions of abuse and neglect, funding of national data collection efforts, and lack of oversight
of sovereign Indian nations (e.g. due to sovereign status, tribes should only participate in
reporting data on a voluntary basis, perhaps leading to a lack of participation of the federally
recognized tribes).
           Overall, the process of collecting data on the abuse and neglect of American
Indian/Alaska Native children has been inadequate, leading to missing or inaccurate information.
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It is important, therefore, to give American Indian/Alaska Native nations more responsibility for the
collection and dissemination of data on the abuse and neglect of children in their communities.
Indian nations should be afforded the support and resources given to the states in providing
programs and gathering data to assist policymakers, families, communities, and other persons
and agencies who assist in addressing this widespread need. In addition, research in the area of
abuse and neglect needs to be designed so that tribal groups can participate at all levels, along
with local, state, federal, and private agencies.


Chapter 4: Effects of Abuse and Neglect on American Indian/Alaska Native Children—Tom
                                                  Crofoot


           Prevalence rates for child abuse and neglect are difficult to determine for any population
but especially difficult to assess for American Indian youth (Bohn, 1998, Bohn, 2003; Fox, 2003;
Willis, Dobrec, & Bigfoot, 1992). Although figures cited on the abuse/neglect of Indian children are
higher than those for children in general in the United States, these figures are suspect for a
number of reasons. However, even in the absence of reliable prevalence and incidence
information, child abuse and neglect is perceived as a serious problem in Indian Country, for
urban Indian communities, American Indian tribes and reservations, and Alaska Native villages.
Goodluck and Willeto (2000) found a basic lack of knowledge about who American Indian youth
are and what conditions Indian youth face as they grow up in different tribal and urban
environments across the nation. Nevertheless, as suggested a decade earlier—"there are few
who doubt that child abuse and neglect in many American Indian communities is a serious social
issue in need of careful examination," (DeBruyn, Lujan, & May, 1992).


Child Abuse and Neglect Defined
           Child abuse and neglect includes institutional abuse and neglect, emotional, physical,
and education neglect, physical abuse, and sexual abuse. Definitions of these types of abuse and
neglect are provided below:


    1. Institutional abuse and neglect is when social institutions, the legal system, the medical
           care system, and the education system do not attempt to meet the needs of all children
           or set out to harm children or provide unequal treatment for children (Giovannoni, 1985).
           This term is also used to describe abuse and neglect occurring in facilities set up to care
           for children (Becker & Maier, 1981).
    2. Emotional neglect includes acts or omissions that could cause a child to develop
           behavioral, cognitive, emotional, or mental disorders and exposure to family violence
           (Hildyard & Wolf, 2002).
    3. Physical neglect includes kicking a child out of his/her home and refusing to allow a
           runaway to return home (CWLA, 2003).
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    4. Educational neglect includes allowing a child to constantly miss school, failing to enroll a
           child of mandatory school age in school, and failing to attend to a child's special
           educational needs (CWLA, 2003).
    5. Physical abuse represents a physical assault, a threat or abuse act, or a pattern of
           behavior that attacks a victim's physical integrity (Kemp, 1998).
    6. Sexual abuse includes fondling a child's genitals, intercourse, incest, rape, sodomy,
           exhibitionism, and commercial exploitation through prostitution or the production of
           pornographic materials.


Effects of Institutional Abuse
           Many of the conditions leading to child abuse and neglect were created by systematic
institutional abuses related to the process of moving tribes to reservations and disastrous
attempts to assimilate American Indian and Alaska Native children in boarding schools. Other
events contributing to child abuse/neglect in tribal communities include the Indian Adoption
Project of 1958 and the relocation of Native families to urban settings. These are only a few
examples of institutional abuse inflicted through federal policies and practices. These policies and
practices helped to create current child abuse/neglect problems in Indian Country. However, the
strengths of American Indian/Alaska Native peoples to survive these policies and practices and
continue to exist, to thrive, and to raise healthy children is significant.


Factors Related to Child Abuse and Neglect
           The current conditions American Indians/Alaska Natives face include conditions
associated with child abuse and neglect. Few direct research links exist to show how these
conditions influence rates of child abuse and neglect for American Indian communities, but the
pervasiveness of poverty and substance abuse and related factors raise serious concerns. With
regard to poverty, child abuse and neglect is disproportionately reported among poor families and
particularly for the poorest of the poor (Plotnick, 2000). Most parents living in poverty are not
abusive, and being poor is not a justification for having children removed from family homes and
placed in foster care. Being poor, however, is more likely to subject parents to the scrutiny of
welfare and welfare officials. Poverty is associated with numerous stresses and challenges that
may increase the likelihood caregivers will abuse or neglect children (Plotnick, 2000).
           Another consistent theme in abuse and neglect literature for American Indian/Alaska
Native children is the connection between child abuse and substance abuse—particularly alcohol
abuse. Children in American Indian homes may be exposed to drinking earlier in life than in non-
Indian homes (Willis, Dobrec, & Bigfoot, 1992). General high rates of alcoholism and poverty
place child abuse survivors at increased risk for negative long-term psychological effects (Hobfoll,
et al., 2002). American Indian neglecting caregivers reported substance abuse problems
including problems with alcohol, marijuana, cocaine or crack, amphetamines, and reported
participating in alcohol and substance abuse treatment more than non-neglecting caregivers
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(Nelson et al., 1993). It is extremely important to note, however, that "not all American Indians
drink and not all who drink do so excessively" (Gill, Eagle Elk, Liu, & Dietrich, 1997).
           Research has also begun to identify other factors related to child abuse and neglect that
are often consequences of or related to poverty and substance abuse, including single parent
households, low birth weight infants, children who lack prenatal care, children with disabilities,
and children of teen parents.


Effects of Neglect
           Harm due to neglect is often underemphasized in child welfare practice and in the
literature. Neglect is important and needs to be emphasized, because it is the most commonly
reported form of problem in Indian child welfare and because the effects of neglect are generally
shown in the research to be even more severe than the effects of abuse. Child neglect is more
prevalent than child physical abuse, and it is nearly as lethal (Nelson, Saunders, & Landsman,
1993). In fact, national child abuse reports for 2002 for all children indicate more child fatalities
were linked to neglect than abuse. More specifically, in a 1975 study conducted with Navajo
children, a greater percentage of involuntarily neglected children suffered severe injury than
abused children, and the neglected children were more likely to have received a medical referral
(White & Cornely, 1981).


Effects of Physical and Sexual Abuse
           Aside from the immediate effects of physical abuse, survivors tend to suffer long-term
effects such as emotional distress, lowered IQ, insecure attachment, delay in ability to put their
thoughts into words, and problems managing anxiety. With regard to sexual abuse, effects
include self-destructive and aggressive behavior, psychological symptoms of depression,
symptoms associated with posttraumatic stress disorder including dissociative episodes,
difficulties concentrating, and anxiety reactions. Other psychological symptoms include sleep
disturbances, low self-esteem, and somatic complaints. Substance abuse, prostitution, running
away, and eating disorders are also associated with childhood sexual abuse (Dexheimer Pharris,
Resnick, & Blum, 1997).


Effects of Child Abuse and Neglect by Developmental Level
           The age at which child abuse or neglect occurs is important for many reasons. Younger
children are biologically more vulnerable to harm. Child abuse and neglect early in life may inhibit
or alter development leading to lasting irreversible health consequences. Also, child abuse and
neglect tend to have different emotional and psychological consequences at different ages.
Newborns, infants, and toddlers who experience abuse often require hospitalization or are fatally
injured. Those experiencing neglect often show decline in development, are less enthusiastic,
and are more frustrated and angrier in problem-solving tasks than other children (Egeland,
Stroufe, & Erickson, 1983).
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           For preschool children, neglect is linked in the research to less enthusiasm, more
frustration, more anger in problem-solving tasks, and lower performance on standardized tests.
Neglect also tends to lower academic achievement and may cause preschool children to have
difficulty putting words together to express their thoughts. These problems are more severe for
neglected children than those associated with physical abuse, although physical abuse and
neglect often overlap (Hildyard & Wolfe, 2002). Medical care, and thus medical neglect, is also an
important issue for this age.
           Finally, at almost double the national rate, American Indian children between the ages of
6 and 17 have the highest rates of injury, mortality, and morbidity. Preventable vehicle injuries,
such as riding without a seatbelt or riding a motorcycle without a helmet, result in the largest
proportion of deaths for American Indian youth. Additionally, for this age group, sexual abuse of
young women can sometimes lead to teenage pregnancy.
           Effects of childhood abuse/neglect often continue into adulthood as well. Childhood
abuse results in increased risk of adult psychiatric disorders, especially depression and anxiety
disorders such as posttraumatic stress disorder (PTSD) (Kendal-Tackett, 2002; Stevenson,
1999). Adult survivors of abuse are also at increased risk of abusing alcohol and drugs.
Additionally, childhood physical abuse is also linked to later adult health problems including
research suggesting increased sickness and more doctor visits, more symptoms of illness, more
surgery, one or more chronic pain symptoms, and obesity (Kendal-Tackett, 2002).


Key Issues Related to the Provision of Services, Funding, and Policy Development
           Given the terrible impact of child abuse and neglect and the lasting effects, support for
tribal programs and urban Indian programs is crucial. Provision of services through culturally
based programs is vital. Coordination of often overlapping jurisdictions between tribes, counties,
states, and federal agencies presents a unique policy challenge. The impact of welfare reform on
Indian Country and the need for funding to reduce poverty must be understood. For policy
development, the major policy legislation affecting child abuse and neglect is the Child Abuse
Prevention and Treatment Act (CAPTA). Therefore, expanding tribal and urban Indian access to
CAPTA programs should be stressed.
           As stated before, without a research foundation to provide reliable prevalence and
incidence information about child abuse and neglect, child maltreatment is perceived as a serious
problem in Indian Country. The strengths of American Indian/Alaska Native communities and
families have been cultural and spiritual traditions, which provide protective factors enabling
children and families to either avoid child abuse and neglect or recover from the adverse effects.
Many of the cultural programs offered by reservations, villages, and urban Indian communities
lack necessary resources to assist all children in need. A considerable investment is needed from
federal, state, and tribal officials to restore family functioning, to prevent further abuse and
neglect, and to repair damage done to American Indian/Alaska Native children and families.

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                Chapter 5: Child Abuse Prevention in Indian Country—Terry Cross


           Prevention of child abuse and neglect in Indian Country is one of the least supported
child welfare activities but has one of the highest potential benefits for Indian children, families,
and tribal communities. Tribal children and families are exposed to a variety of factors that
heighten their risk for child abuse and neglect, including poverty, substance abuse, trouble with
the law, and geographic and social isolation.
           Overall, the impact of child maltreatment in many Indian communities has been
devastating. Child maltreatment in tribal communities has disrupted extended family support
networks, broken up families through placements outside the community, and contributed to the
cycle of violence and substance abuse that continues to hamper positive development.
           Although tribal children and families are exposed to factors that heighten their risk for
maltreatment, Indian communities also have characteristics that help protect against child
maltreatment. These characteristics provide natural maltreatment prevention support systems
and include the following:


    1. Child-rearing practices that promote bonding and protect the child emotionally, physically,
           and spiritually
    2. Customs and traditions for regulating civil matters such as child custody
    3. Mechanisms for assuming responsibility for children in need
    4. Spiritual teachings


Community-Based Prevention
           Few solutions imposed from outside have ever been effective in Indian communities.
From research conducted by NICWA, it appears that what can be brought to a community is help
with problem-solving skills and strategies, facilitation of a community development process, and
sharing of technical information or knowledge to show people how to achieve their goals.
Resources are an essential piece to prevention of child maltreatment. When tribes have the
appropriate resources, they are able to develop programs that are responsive to community
needs.
           Currently, child abuse prevention efforts are extremely rare in Indian Country. The few
tribal communities that are engaged in prevention efforts, however, use multiple approaches to
reduce child maltreatment, including public awareness, parent support, child resistance education
(safe touch, stranger danger, etc.), interventions to reduce problem behavior, social risk
reduction, and cultural strengths. Although these approaches are promising, limited resources
have restricted further development of prevention programs. Increasing tribal access to funding
under the Child Abuse Prevention and Treatment Act (CAPTA), Title XX Social Services block
grants, and children‘s trust fund resources would provide them with the opportunity to engage in

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more prevention efforts. Additionally, tribal programs that want to engage in these efforts need
access to technical assistance and training resources.
           It is essential that tribes build the capacity to conduct comprehensive child abuse and
neglect prevention and that it be evaluated. In order for this to occur, several major issues must
first be addressed, including increasing funding to support prevention services, developing
culturally based prevention methods, developing Indian-specific materials, training, and technical
assistance on prevention and program evaluation, and designing and conducting evaluations that
document the effectiveness of current prevention efforts.


               Chapter 6: Child Protection in American Indian Tribes—Terry Cross


           Despite their sovereign authority tribal governments have not always had the opportunity
to be involved in protecting their children. The complexity of the relationships between tribes,
states, and the federal government has contributed to confusion by policymakers and
bureaucracies about who is responsible for what services. This complexity has also contributed to
under-funding of tribes for child protection efforts.


Discussion of Issues: Problems and Barriers in Child Protection Systems
           Child protection systems in Indian Country are diverse and fragmented into a complex
array of service delivery models that leave some children unprotected, some families without the
protections of due process, and many agencies in doubt of who is responsible for what activities.
While a few tribes have made progress in the child protection arena, major issues remain,
including the following:


    1. A lack of effective reporting of child abuse and neglect
    2. A lack of coordination between agencies pursuing investigations
    3. A lack of resources to conduct proper investigations
    4. Varying definitions of child abuse and neglect
    5. A lack of training and technical assistance for tribal child protection personnel
    6. Confusion over jurisdictional matters
    7. Confusion over what entities should be involved in investigations


           All of these items complicate the task of child protection and must be addressed before
appropriate efforts to reduce child abuse and neglect can be fully implemented.


Promising Approaches and Related Issues
           Tribes have developed a number of promising approaches to child protection in the areas
of investigation, character and criminal background checks, traditional healing-based services,
family group decision making, systems integration, and training and technical assistance. For
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example, numerous tribes have developed agreements with tribal, BIA, and state agencies to
cross-deputize with local county law enforcement and to clarify roles. Tribes have also developed
strengths-based early intervention approaches to address child protection issues.
           Overall, however, child protective services in tribal communities are under-funded or not
available. These issues present a variety of problems for tribes who are intent on addressing the
growing problem of child abuse and neglect. Major reforms are needed on several fronts to
achieve this, and a bold new policy initiative in support of tribal children will be necessary to
accomplish them.


 Chapter 7: Child Sexual Abuse in Indian Country—Dee Bigfoot, Terry Cross, & Kathleen
                                                    Fox


           Sexual abuse permeates all cultures and nationalities. The rate of sexual abuse in tribal
communities is hard to quantify, however, these numbers can be teased out from existing data.
Based on general findings, American Indians/Alaska Natives account for 2% (1,758) of the
reported number for victims of sexual abuse. Most tribes have historical teachings that define
acceptable social roles and norms and inappropriate sexual relationships between relatives or
clan/band relations.


Definitions of Sexual Abuse
           The general definition of child sexual abuse is the illegal exploitation and/or unwanted
sexual contact of a child or adolescent for the sexual gratification or stimulation of another person
in which that person may be older, younger, or the same age as the child, whereas consent may
not or cannot be given, and force or threat of force may be involved and when the abuser is in the
position of power or control over the child (Bigfoot & Braden, 2003; Bonner, 2003; Berliner, 2000;
Finkelhor, 1979; Echohawk, 2001). The kinds of sexual behavior directed toward children that are
illegal and inappropriate can include activities such as fondling, intercourse, sodomy, and oral-
genital stimulation. Also, the individual can have the child engage in sexual behavior such as
involving the child in prostitution or using the child's image for child pornography. In addition, it
may also involve unwanted sexual contact where individuals expose themselves by exhibitionism
or where individuals view children when they are not aware, as in voyeurism.


Tribal Definitions
           Due to the various jurisdictions at tribal, city, county, state, and federal levels, the laws
vary depending on the status of the alleged offender (tribal member versus non-tribal member),
the location of the crime (trust versus non-trust lands), the status of the victim (tribal member
versus non-tribal member), and the type of offense. The location of the offense may complicate
who has jurisdiction, and the jurisdiction will determine who investigates.

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           In order to address the above-listed complications, many federal jurisdictions are
establishing Memoranda of Agreement (MOA) that define the roles of the U.S. attorneys, state
child protective services, tribes, the Bureau of Indian Affairs, the Indian Health Service, and other
federal, state, and tribal agencies involved in child sexual abuse in Indian Country. These MOAs
have helped to eliminate the hesitation from some law enforcement agencies when there are
questions of who has jurisdiction and where to take an Indian child when disclosure occurs.


Incidence of Child Sexual Abuse in Indian Country
           Child maltreatment of American Indian/Alaska Native children has been documented in
state statistics; however, since the majority of American Indians/Alaska Natives live outside of
trust lands and are under the jurisdiction of sates, the number of child sexual abuse cases
involving American Indians/Alaska Natives can be considered accurate only for those living off-
reservation. On-reservation rates, therefore, need to be teased out of existing state data and
other sources. These other sources often reflect varying statistics that make it difficult to ascertain
the true impact of child sexual abuse in tribal communities. For example, the National Indian
Justice Center (1991) reported rates of child sexual abuse that varied dramatically among three
different data sets collected from the Bureau of Indian Affairs (BIA) and the Indian Health Service
(IHS).Sexual abuse made up 26% of reports from the BIA Education data set, 9% of reports from
the Albuquerque IHS data set, and 14% from the Alaska IHS data set (Earle & Cross, 2001).


Barriers in Prevention, Recognition, and Treatment of Sexual Abuse
           Views towards sexual abuse in Indian Country are complicated by tribal customs related
to attitudes toward sexuality, trust, respect, and honor. In addition, sexual abuse of American
Indian/Alaska Native children has been affected and exacerbated by influences outside the
culture. Sexual abuse was, for example, frequently learned from teachers and others at boarding
schools away from the protection of family and tribe. The negative influence of the boarding
school era has affected many aspects of tribal life, including child protection. Overall, major
barriers that affect the prevention, recognition, and treatment of sexual abuse include the
following:
    1. assumptions that American Indian/Alaska Native families do not discuss sex and
           therefore do not acknowledge sexual activity
    2. aistrust based on biased or negative law enforcement experiences
    3. parent(s) questioning the truthfulness of the child's disclosure
    4. generational trauma
    5. mistrust of governmental intrusion


Initiatives to Address Sexual Abuse in Indian Country
           Within the past decade, there have been programs created to focus on the problems of
sexual abuse in Indian Country. For example, the Indian Health Service and the Office for Victims
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of Crime established the Medical Examiners Training Project (Power & Bigfoot, 2002) to train
medical providers in the evaluation of child physical and sexual abuse, in providing expert
testimony in federal or state cases of physical or sexual abuse, and in providing consultation to
other medical providers concerned with physical or sexual abuse of American Indian/Alaska
Native children. Additionally, former attorney general Janet Reno instituted the Office of Tribal
Justice to coordinate all the Department of Justice (DOJ) programs in Indian Country. With regard
to policy, the Indian Child Protection and Family Violence Prevention Act was passed and
became the first real legislative attempt to address the issue of child sexual abuse on Indian
reservations. Finally, clinical treatment efforts were developed by IHS in Project Making Medicine,
which was based on traditional teachings and traditional concepts of healing for American
Indians/Alaska Natives. This project provided trainings on the treatment of child physical and
sexual abuse in Indian Country. All of these efforts created the climate for the Indian community
to address individuals committing sexual offenses.
           Prevention efforts in Indian Country have also become part of the community
consciousness. These efforts are creating a growing wall of protection for Indian children and
families, with child sexual abuse being talked about in Indian communities in ways that are
familiar and that will help to heal and stop future abuse.


Chapter 8: Sovereignty, Cultural Competency, and Family Preservation—John Red Horse,
                                      PhD, & Gordon Limb, PhD


           Sovereignty recognizes that unique tribal histories and social institutions are sources of
strength that can guide the process of knowledge building. Hence, sovereignty assumes that
cultural institutions, value orientations, and traditional knowledge, attitudes, and beliefs are
sources of strength; they are repositories from which social work professionals can organize
theoretical concepts around human development and implement methodologies of intervention.


Attributes of Sovereignty: Extended Families and Traditions
           Differences in core Indian and non-Indian values still prevail because colonialism did not
defeat the idea of internal sovereignty among tribal people. Therefore, their understanding of
basic institutions such as family and religion remains stable. Among American Indians/Alaska
Natives, the extended family and kin system serves as a fundamental social unit. This is not
similar to Eurocentric models that organize extended families around three generations in a single
household. Native family and kin systems arrange as multiple households and many small
reservation communities often consist of a single extended kin system. Family is characterized by
intense relationships. Although these family structures are of tremendous benefit to tribal
communities, they eventually had to make way for civilization, thus eroding Native family
structures, traditions, and overall sovereignty.

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Historical Glimpse: Cultural Genocide
           With few exceptions, federal policies and practices, such as the Civilization Act of 1819,
the Dawes Act, the Indian Adoption Project, and the IHS sterilization projects have deliberately
undermined American Indian/Alaska Native communities, families, and cultures. Cultural
repression in both historical and contemporary times continues to cause trauma that leads to
identity crises, family dysfunction, and community disintegration. Indeed, many of the
contemporary social problems that family preservation and other services were designed to
address can be directly linked to the social disruption caused by federal policies of assimilation
and cultural destruction.


Clinical Legacy: Fractured Families
           Data gathered from six states during the 1970s found that American Indian/Alaska Native
children were removed from families at alarming rates and placed either in foster care or adopted
predominantly into non-Indian families (Byler, 1977). A seminal work, entitled The Destruction of
American Indian Families, pointed to several reasons for this trend: 1) social workers often
removed children without appropriate cause; 2) Native children were often removed after only one
casework visit; 3) court systems did not fully advise American Indian/Alaska Native parents of
legal rights; 4) legal representation was not effective; and 5) child welfare systems did not launch
effective efforts to find Native foster homes (Unger, 1977). In an effort to address both the above-
listed discrepancies and the attempts to dismantle tribes and families, Congress passed the
Indian Child Welfare Act of 1978. This law reaffirmed tribal sovereignty and became an essential
roadmap for family preservation.



Clinical Applications: Cultural Competence
           Several clinical applications, which can range from common mainstream social work tools
to those used by traditional American Indian/Alaska Native healers, may advance cultural
competence. Applications that have proven successful within tribal family and kin systems include
the following:
    1. Genogram: This tool helps identify members within extended kin systems, delineate
           patterns of behavior, and assist in identifying strengths within family systems.
    2. Wraparound: This tool combines procedures for case management and treatment. A
           clinical team monitors case progress and one or more members of the team maintain
           ongoing clinical contact with clients.
    3. Talking circles: This tool serves as a medium for the transmission of oral histories, and,
           consequently, culture and tradition. In Indian communities, these circles can help
           facilitate intervention through cultural education.



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    4. Kinship care: This practice uses natural helping networks for foster care, emergency
           care, and counseling needs. Kinship care can strengthen cultural cohesiveness in
           communities and family units alike.
    5. Healing ceremonies: These practices are used to fulfill a variety of needs and have been
           particularly useful in family preservation treatment.
    6. Traditional adoption: This practice is another key method for involvement of kin and for
           reconnection of extended family systems. Traditional adoption does not terminate
           parental rights and, therefore, does not destroy natural bonds between biological parents
           and children.


Additional Barriers to Family Preservation
           While a number of barriers and challenges to sovereignty, cultural competence, and
family preservation have already been presented, several others deserve attention. First,
implementation of existing policies and services that could potentially strengthen Native families
are the exception rather than the rule. Many social services, including some family preservation
models and practices, have been developed and applied with minimal regard for tailoring to
specific tribal strengths and/or needs. Second, a lack of tribal infrastructure and dependence on
external social service delivery systems have been problematic (James Bell Associates, 2004).
Third, mainstream services and service providers continue to function from a deficit perspective,
ignorant of Native cultural practices (Red Horse et al., 2000). This practice has resulted in
services that are neither culturally appropriate nor effective for intervention and treatment.


Successful Models
           Models that build on a strengths perspective and are tribally centered have been shown
to be effective with American Indians/Alaska Natives. One example of a successful family
preservation model comes out of Ft. Berthold in North Dakota. A study of this program found that
tribal family preservation requires community education and advocacy, tribal members as staff,
reliance on cultural systems, and social work skills that incorporate culture and work from a
strengths base (Red Horse et al., 2001).
           Cross, et al. (2000) note that models that utilize traditional practices and community
members are important considerations in providing culturally competent services. It is suggested
that rather than seeing traditional healing as an adjunct to standard service provisions, services
for American Indians/Alaska Natives should be founded on cultural values with mainstream
services as an adjunct.
           It is important to remember, when providing services to Native children and families, the
true client is not only the individual, but also the tribal community. Additionally, a strong, positive
cultural identity is necessary for healing, and spiritual values and practices must be documented
and promoted.

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     Chapter 9: Foster Care and Permanency Issues for American Indian/Alaska Native
                             Children and Families—Gordon Limb, PhD


           The importance of permanence over time continues to be an integral part of Native
culture and well-being. Historically, federal policies have led to the removal of large numbers of
children from tribal families, which has destroyed these children‘s sense of belonging and
permanence. In tribal communities, the perception of permanence can be said to exist only if the
child perceives security and a sense of belonging to a family, extended family, clan, and tribe
over time—a critical aspect of permanency (California social Work Education Center, 2000).
Within this concept, kinship circles, clans, and the community shape and define a child's
experience of the world, his or her tribal identification, and his or her sense of belonging.
Permanency, therefore, has as much to do with maintaining a child's connections with his or her
tribe and Native heritage as with his or her nuclear family and should not be thought of as a
separate component but an overarching aspect of holistic living. Therefore, the primary goal of
permanency is to provide a child with the continuity of relationships and the culturally appropriate
means by which a child can know his or her family (NICWA, 1996).


Removal and the Need for the Indian Child Welfare Act
           One of the most disruptive aspects to this continuity of relationships resulted from the
removal of 25% to 35% of all Native children and their placements into non-Indian foster homes,
adoptive homes, or institutions (AAIA, 1969, 1974). The decision to remove these children from
their natural families was often a product of state child welfare agents' lack of understanding of
American Indian/Alaska Native culture and child-rearing practices (Hollinger, 1992, U.S. House
Report, 1978). Due to the large number of displaced Indian children, tribes were threatened with
extinction. Additionally, the alienation of Indian children from their unique tribal cultures and
values resulted in a loss of permanency, belonging, and connection for the child and destroyed
the bond between Native children and their extended family support networks (Brown, Limb,
Chance, & Munoz, 2002). In response to this extreme devastation of tribal populations and
culture, Congress passed the Indian Child Welfare Act (ICWA) of 1978.


ICWA as Permanency Legislation
           The premise of ICWA is based on permanency and the protection of children, support
and preservation of families, and the survival of a people. It provides Native parents and tribes
the right to decide what's best for their children and affirms the cultural needs of Native children.
ICWA also recognizes the notion of "groupness" and the understanding that Native people place
a high value on the support and well-being of the tribe and extended family (Halverson, et al.,
2002). Today, ICWA is viewed as a cultural and legal victory in the turn of U.S. federal policy
toward American Indian/Alaska Native nations' self-determination and focus on tribal and family
preservation (Hunt, Gooden, & Barkdull, 2001).
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Current Federal Policies and Their Impact on Permanency
           Shortly after the passage of ICWA, Congress passed the Adoption Assistance and Child
Welfare Act (AACWA) of 1980, which required states to provide programs for prevention of foster
care placement and allotted funding for family preservation services. More recently, passage of
the Promoting Safe and Stable Families Act (PSSF) appropriated funding for states to develop
programs that emphasize family preservation services and community-based family support
services (Denby, Curtis, & Alford, 1998). Overall, these policies have promoted a major overhaul
in child welfare, emphasizing family support, preservation, and permanency. They also represent
a conceptual shift in child welfare policy from deficit models to focusing more on strengths-based
models (Limb, Chance, & Brown, in press).
           Several other current federal policies impact permanency for tribal children, including the
Multi-ethnic Placement Act (MEPA) of 1994 and the Adoption and Safe Families Act (ASFA) of
1997. MEPA has impacted ICWA in that one of its provisions requires states to recruit same-race
foster homes. Although many states still struggle with recruiting Native families, this provision can
actually enhance ICWA compliance by increasing the number of American Indian/Alaska Native
families available for foster care and adoptive placements.
           ASFA was enacted to address the issue of children spending long periods of time in
foster care. It mandates that permanency plans and permanent placements be done within a year
after the child enters foster care. ASFA affects permanency in tribal communities, as it largely
ignores policies that supports American Indian/Alaska Native permanency values. This law has
failed to consider the cultural and legal requirements of Native children and the wide range of
permanency options available to them. It is important to note that ASFA does not supercede
ICWA and can only be effective for tribal children when applied jointly with ICWA.


Barriers to Permanency
           There are two major barriers to permanency—resources and policy. From a resource
standpoint, one of the main reasons why permanency does not occur is a lack of resources to
enforce compliance with ICWA and other policies that promote permanency. From a policy
standpoint, one of the major barriers to permanency for American Indian/Alaska native children
centers on a "one size fits all" mentality among some non-Natives. An additional policy barrier to
permanency is the judicially created exception to ICWA's mandates called the existing Indian
family doctrine. This doctrine has allowed some state courts to determine who is "Indian" based
on their own definitions.



Models that Demonstrate Success
           American Indian/Alaska Native communities are finding ways to promote permanency
and belonging through family group conference and holistic interventions. In addition, several
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paradigm shifts need to occur in social service delivery systems to provide increased permanency
for Indian children. These include the following:


    1. Partnering with families to provide interventions that are responsive to tribal families
    2. Moving away from interventions that focus primarily on correcting deficits and
           weaknesses and toward practices that build upon and strengthen child, family, and tribal
           capabilities
    3. Moving away from defining solutions to Native family needs solely in terms of
           professional services and toward practices that utilize traditional knowledge with formal
           and informal community linkages to promote a mutually supportive relationship
    4. Changing help-giving practices to create opportunities for Native families to utilize
           existing strengths, learn new skills, and acquire competencies that all have empowering
           consequences


           The importance of permanence over time continues to be a vital part of Native culture
and well-being. Overall, the remaining goal of permanency from a tribal perspective is to promote
policies and resources for the development of family-centered, family-focused, and family-based
approaches designed to meet the needs of families and children within their own tribal
communities.


                 Chapter 10: Jurisdictional Issues and Tribal Courts—Jack Trope


           American Indian/Alaska Native children who are victims or potential victims of child
maltreatment are subject to a maze of jurisdictional rules that may affect how problems are
addressed. The federal government, states, and tribes all have roles to play. Whether the
abuse/neglect is civil or criminal, who the perpetrator is, whether the offense takes place in Indian
Country, and where the child lives and is domiciled are all important factors into which sovereign
entities have jurisdiction to determine questions of child abuse and neglect, who investigates,
how services are provided, and whether or not services are available.


Jurisdiction—Overview
           Indian tribes have long been recognized as sovereign political entities possessing
sovereign authority. Congress has the authority to limit the exercise of this sovereignty, and the
courts have held that tribes have been implicitly divested of certain powers by reason of their
"dependent status." As sovereign nations, tribes have the right to regulate personal and domestic
relations according to tribal customs and laws. States, therefore, have no jurisdiction over such
matters that involve members of the tribe domiciled or resident on the reservation. Further,
criminal jurisdiction over crimes on the reservation, such as criminal sexual abuse, has also been
retained by tribes as part of their inherent sovereign authority when the crimes have been
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committed by American Indian/Alaska Native people. It is important to note, however, that there
are limitations on the exercise of criminal tribal authority as established by the Indian Civil Rights
Act (ICRA).
           In 1953, with the passage of Public Law 83-280, Congress and the courts intruded upon
tribal exclusive jurisdiction. This law provided for certain states to exercise criminal jurisdiction
over all American Indian/Alaska Native people living within the state as well as over "civil causes
of action" involving American Indian/Alaska Native people residing in the state. Of the 16 states
that acquired jurisdiction under P.L. 280, six were mandated to take jurisdiction, while ten opted
to take jurisdiction.


Federal Child Welfare/Child Abuse Laws
           Though a number of statutes may be relevant to the issues of child abuse and neglect of
American Indian/Alaska Native children, there are a few laws of particular importance. These
laws include the Indian Child Welfare Act (ICWA), the Indian Child Protection and Family
Violence Prevention Act, Titles IV-B and IV-E of the Social Security Act, the Child Abuse
Protection and Treatment Act, the Major Crimes Act, the Indian Country Crimes Act, and P.L.
280. Effects of these laws on child welfare issues are briefly described below:


    1. The Indian Child Welfare Act: States exercising jurisdiction over American Indian/Alaska
           Native child custody proceedings can overlook the importance of connections to
           extended family and community. Through ICWA, Congress attempted to curtail the
           authority of states and strengthen tribal authority over child welfare laws.
    2. The Indian Child Protection and Family Violence Prevention Act (ICPFVPA): Problems
           have arisen in the implementation of the act, most notably due to the absence of funding
           for implementing its provisions and the need for better coordination of services and
           information between the BIA, Indian Health Service (IHS), Federal Bureau of
           Investigation (FBI), and U.S. attorney's office, among others.
    3. Titles IV-B and IV-E of the Social Security Act: These titles "are intended to operate in
           consort to help prevent the need for out-of-home placement of children, and in such
           cases where such placement is necessary, to provide protections and            permanent
           placement for the children involved.‖ The Adoption and Safe Families Act of 1997, which
           amended these titles, has created some confusion for both states and tribes regarding
           jurisdiction over Indian children involved in state child custody proceedings.
    4. The Child Abuse Protection and Treatment Act (CAPTA): For the most part, tribes have
           been left out of CAPTA, which requires citizens and specified professionals to report
           suspected child abuse and neglect to a designated public agency.
    5. Major Crimes Act, Indian Country Crimes Act, and P.L. 280: These laws allow for the
           prosecution of certain types of criminal abuse and neglect in federal or state courts.

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Tribal Courts
           Tribes have always had systems for addressing their internal conflicts and relationships.
Historically, these systems were informal, unwritten, and based upon a holistic philosophy and a
way of life (Melton, 1995). Although a few tribes continue to operate such systems exclusively,
the vast majority of tribal court justice systems today operate pursuant to written codes and
procedures and resemble, in many respects, their federal and state counterparts (Jones, 2000).
Today, tribal courts play a critical role in the exercise of sovereignty. In fact, the federal
government enacted the Indian Tribal Justice Act to encourage the development of more tribal
courts. This law authorized funding for tribal courts and tribal judicial conferences, recognized
inherent tribal sovereignty and the right of tribes to choose their own court systems, and created
an Office of Tribal Justice Support in the BIA.
           Tribal courts have a variety of forms. Some are traditional in nature, while others are
hybrid systems based largely upon the American model but which try to incorporate tribal laws,
customs, and mores in various ways. Tribal codes governing these courts also have a variety of
forms and cover a range of subjects, including, but not limited to, membership, health and safety
issues, family law, land use, conservation and environmental protection, hunting and fishing,
commercial codes, education, health care, and housing.


Jurisdictional Issues
           There are several ways in which jurisdictional issues affect the treatment of child
maltreatment of American Indian/Alaska Native children. Key jurisdictional questions and brief
responses are included below:


    1. When does a tribe have exclusive jurisdiction over child welfare matters? Tribal courts
           have the inherent right to exercise jurisdiction over children who are tribal members
           resident and domiciled on the reservation based upon their inherent sovereignty.
    2. When do states and tribes share jurisdiction over such cases? ICWA recognizes that
           tribes have concurrent jurisdiction over their children wherever those children are located
           (e.g., presumptive tribal jurisdiction). Disputes between the two concurrent jurisdiction
           sovereigns occur in two basic ways: 1) there are differences concerning when ICWA (and
           hence its transfer provision) applies; and 2) there are disputes about what constitutes
           good cause for a state court to decline a motion to transfer a proceeding to tribal court.
    3. In exercising sovereignty, when and how must state courts defer to tribal courts or
           standards? ICWA requires that state courts give full faith and credit to official acts of
           tribes, which means both court orders and tribal codes. States should also defer to tribal
           standards in the context of ICWA compliance. For example, states should use definitions
           of extended family members and Indian custodians as well as placement preferences
           determined by tribes.

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    4. What is the nature of cross-jurisdictional cooperation both between states and tribes on
           child welfare and between the federal government, states, and tribes in criminal cases?
           An important way in which tribal-state jurisdictional disputes are resolved is through tribal-
           state agreements. The Indian Child Protection and Family Violence Prevention Act
           authorized funding for, among other things, coordination of tribal, local, and federal law
           enforcement agencies and court systems in the area of investigating and prosecuting
           criminal abuse on reservations. In addition, the Children's Justice Act (CJA) Partnerships
           for Indian Communities grant through the Department of Justice has provided some
           money for this same purpose.
    5. What funding issues that affect the availability of services to American Indian/Alaska
           Native children and families arise from the multiple jurisdictions that are involved? Two
           noteworthy funding issues arise from a jurisdictional context. The first involves funding for
           foster care. Because tribally-licensed or approved foster families on or near the
           reservation are included in the Title IV-E definition of "foster family home" for purposes of
           IV-E eligibility, states may, using Title IV-E funds to pay for them, place children in tribally
           licensed and approved homes. However, Title IV-E only defines "placing agency" to
           include states and other public agencies with which the state has an agreement, thus
           creating an anomaly where availability of funding for tribally licensed or approved foster
           homes otherwise eligible for IV-E funding depends on who places the child.


           The second funding issue involves non-discriminatory access to state services for
children who are under the jurisdiction of the tribal court. Although American Indian/Alaska Native
people living on reservations are entitled to non-discriminatory access to state services, disputes
have arisen concerning whether it is the federal government‘s or state‘s responsibility to pay for
services when the need arises in connection with a legal proceeding outside of the state's
jurisdiction.
           As evidenced above, jurisdictional issues are important in determining how incidents of
abuse and neglect of Indian children are handled.


   Chapter 11: Services Integration in Indian Country—Linda Jones, Terry Cross, & Don
                                                  Shircel


           Multi-service organizations and governmental entities like states, counties, cities, and
tribes, have realized that the various programs they administer have a tendency to become
isolated from each other despite the fact that they often serve the same clients. Such a situation
can result in costly duplication of time and effort as well as create a complex maze that clients
must navigate when trying to find the multiple services that are needed to adequately address
their problems and issues.

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Attributes of Service Integration
           In order to remedy this situation, many organizations have started the process of service
integration. This process can be defined as seamless services or a system of care, whose goal is
ensuring that an individual or family receives a range of different services through collaboration
among schools, health care providers, and social services agencies. These services are provided
to the family without them having to endure multiple or repeated application or registration
procedures, eligibility screening and other types of administrative barriers. The primary goal of
service integration is solving problems of service fragmentation, overlap, and lack of access and
availability by improving outcomes for children and families.


Why Service Integration Is Important for Tribal Communities
           Children born at environmental risk associated with extreme poverty have more than
twice the incidence of developmental difficulties than other children (Kochanek, Kabacoff, &
Lipsett, 1987; Meisels & Wasik, 1990). Additionally, stressful experiences during early childhood
years can affect brain development and place children at risk for developing a variety of cognitive
behavioral and emotional difficulties. Indian children are at a much higher risk of living in poverty
and therefore are also at a higher risk of having developmental, behavioral, and/or emotional
problems. For this reason, to prevent the array of possible negative outcomes for tribal children,
multiple services should be made available early in a child‘s life.


Barriers to Service Integration
           The most common barriers to service integration include the following:


    1. Lack of resources
    2. Conflicting program priorities
    3. Poor communication
    4. Little or no follow-up
    5. Reliance on short-terms intervention for problem behaviors
    6. Limited treatment options
    7. Parents‘ unwillingness to have their children assessed and ―labeled‖
    8. Services that are driven by the constraints of the service system


Examples of Successful Service Integration Models
           Two tribal programs in particular highlight the importance of services integration in tribal
communities. First, the Starting Early Starting Smart (SESS) program was aimed at helping
grantees design and provide integrated behavioral health services to children and their families.
Using service integration principles as a guide, the Tulalip Tribes, with the help of the SESS
program, transformed their program into ―beda?chelh—a culturally specific, child-focused, family-
centered, and strengths-based program. Through ―beda?chelh,‖ staff worked creatively to design
R13227-0                                            29
integrated services promoting family and cultural preservation, health, and resiliency in the
community‘s children and families. This program achieved this goal by 1) promoting recovery
from substance abuse and mental health problems in parents, 2) strengthening individual child
skills in the social, emotional, and cognitive domains, and 3) strengthening the bonds between
children, their families, and their communities. The Tulalip SESS project was successful because
it utilized traditional storytelling, play therapy, and integrated behavioral health services for family
members such as substance abuse or domestic violence treatment to meet the needs of each
family.
           In addition to the Tulalip SESS project, the Tanana Chiefs Conference (TCC), which
serves more than 40 remote villages in Alaska, is also engaging in service integration practices.
TCC‘s Office of Child and Family Services (OCFS), for example, is an integral part of their newly
developed Client Development Division, which implements a wide range of family-centered
programs utilizing comprehensive service integration and funding consolidation models.
Additionally, the OCFS integrates the efforts of 37 village-based, paraprofessional Tribal
Family/Youth Specialists (TFYS) with professional level support staff who are supervised locally
by their respective tribes. These TFYS‘ are the single point of contact regarding village services
aimed at preventing, intervening in, and managing all child protection cases involving tribal
members from their communities. Finally TCC also provides a wide range of additional support
services that are immediately available to families, including GED and distance delivered high
school and post secondary education, vocational training, tuition, housing, transportation, and
rental assistance.
           While the Tulalip SESS project and the Tanana Chiefs Conference are only two
examples, there are many other service integration projects in process around the country.
Overall, communities have experienced dramatic changes in attitudes about services on the part
of families. New partnerships between behavioral health professionals and natural helpers and
healers have emerged that will help practitioners and others address the individual needs of each
tribal child and family, thus leading to better outcomes for Indian children.


            Chapter 12: Conclusions and Recommendations—David Simmons, MSW


           Each author developed recommendations related to his or her subject area in the areas
of policy, practice, and research. Recommendations that were most frequently mentioned
throughout all of the chapters include increased support and acceptance for tribal cultural
services, full implementation of existing law, improved access to core funding for tribal programs,
increased development of cross-cultural skills and knowledge for mainstream programs serving
American Indian/Alaska Native children and families, and promoting demonstration projects and
research that focus on promising practices in tribal child welfare. Below is a summary of the
specific chapter recommendations.

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Chapter 2: Tribal/State Relations
    1. Support the development of effective federal and state policies that give tribes more
           opportunities to administer child welfare programs and incentives for states to enhance
           services to Indian children and families.
    2. Create an environment and structure for effective communication and education efforts
           regarding child welfare practice issues between states and tribes.
    3. Support more comprehensive data collection and research efforts that target American
           Indian/Alaska Native children and families in state and tribal child welfare systems.


Chapter 3: Data Issues Regarding Abuse/Neglect of American Indian/Alaskan Native
Children
    1. Support changes to the Indian Child Protection and Family Violence Prevention Act to
           provide support for tribal data collection system development and administration
           regarding child abuse and neglect.
    2. Develop and implement a mechanism for tribes to participate in a nationwide child abuse
           and neglect reporting system.
    3. Promote research in Indian Country to develop critical data regarding child abuse and
           neglect.


Chapter 4: Effects of Abuse and Neglect on American Indian/Alaskan Native Children
    1. Support improved poverty reduction programs and employment opportunities in Indian
           Country to reduce the risk factors for child abuse and neglect.
    2. Support changes to the Title IV-E Foster Care and Adoption Assistance authorizing
           statute to allow tribes to administer the program directly.
    3. Fully implement the No Child Left Behind Act with respect to tribal and BIA run schools.
    4. Increasing training for tribal prenatal health care providers on assessment of child abuse
           and neglect.
    5. Increased support for training of state and tribal child welfare professionals.
    6. Increase the availability of preventive and treatment services to divert American
           Indian/Alaska Native child abuse and neglect victims from the juvenile justice system.
    7. Increasing opportunities for tribally directed research on child abuse and neglect.


Chapter 5: Child Abuse and Neglect Prevention in Indian Country
    1. Congress should enact legislation that creates a comprehensive child abuse prevention
           program for federally recognized tribes. Such a program should support the national
           development of culturally specific materials, exchange of promising practices, technical
           assistance, evaluation and research, and local tribal prevention efforts.
    2. Require all cabinet-level departments to review grant and formula programs in which
           tribes participate for opportunities to support child abuse prevention and to coordinate
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           those efforts across departments. Cost-sharing pilot projects should be implemented to
           deal with the urgent need for child abuse prevention in Indian Country.
    3. Amend Title XX of the Social Security Act to provide direct funding to tribes that could be
           used for prevention activities.
    4. Create a national Indian children‘s trust fund for child abuse prevention based on the
           state models and organized as a publicly held corporation. This trust fund would have
           the capacity to raise funds, receive federal matching monies, and make grants directly to
           tribes and Indian organizations.


Chapter 6: Child Protection Systems in Indian Country
    1. Establish a comprehensive child protection entitlement program so that every federally
           recognized tribe that desires to operate its own child protection services may do so.
           Such a program should support local child protection services and tribal courts as well as
           inter-jurisdictional agreements, the national development of culturally specific services,
           creation and strengthening of courts, training, technical assistance, and evaluation and
           research. In addition, requirements for states and counties to enter into child protection
           agreements with local tribes should also be included.
    2. Provide funding to support tribal efforts to educate both community members and
           mandatory reporters on all aspects of child abuse and neglect and where to report it.
    3. Clarify cross-jurisdictional issues by clarifying the exclusive jurisdiction of tribal
           governments under Public Law 280 in child protection and require local jurisdictions to
           enter into agreements to clarify protocols for responding to child protection reports.
           Funding support is needed to support the development of these protocol agreements.
    4. Amend the Child Abuse Prevention Treatment Act (CAPTA) to create a discretionary
           grant program specifically for tribes, which fosters, demonstrates and disseminates
           information about promising practices for addressing child abuse and neglect.
    5. Establish a national tribal technical assistance program in all aspects of code, court,
           procedure development, and operation for the purposes of child protection.
    6. Revise the Bureau of Indian Affairs and Indian Health Services joint memorandum on
           child protection teams to be more responsive to the reality of the diverse systems of child
           protection in Indian Country.
    7. Establish a national technical assistance and training center for tribal child protection and
           child welfare, similar to what is available for states, that could assist tribal agencies as
           they enhance their capacity and practice in child welfare. While the primary focus should
           be on tribal professionals and programs, first responders across all pertinent jurisdictions,
           in all aspects of child abuse investigation involving American Indian/Alaska Native
           children could be part of the target population for training.
    8. Require all cabinet-level departments to review grant and formula programs in which
           tribes participate for opportunities to support child protection and to coordinate those
R13227-0                                             32
           efforts across departments. Cost sharing pilot projects could be established as a result of
           this effort to bring urgently needed resources to tribal efforts to address child protection.
    9. Develop a mechanism and resources for tribes and the BIA to provide child abuse and
           neglect data to the National Child Abuse and Neglect Data System.


Chapter 7: Child Sexual Abuse
    1. Remove policy and interjurisdictional barriers to investigation and prosecution of
           offenders.
    2. Improve access to treatment for sexual abuse victims.
    3. Establish forensic training programs for investigators and interviewers.
    4. Establish a tribal court improvement project.
    5. Expand the role of the Office of Victims of Crime regarding child sexual abuse in Indian
           Country.
    6. Expand Children‘s Justice Act programming in Indian Country.
    7. Develop demonstration programs on prevention of sexual abuse in Indian Country.


Chapter 8: Sovereignty, Cultural Competency, and Family Preservation
    1. Fully implement the Indian Child Welfare Act in state child custody proceedings.
    2. Develop tribal codes.
    3. More fully utilize cultural adaptations of mainstream clinical tools and tribal elders in work
           with American Indian/Alaska Native families.
    4. Provide more funding support for tribal family preservation programs.
    5. Provide incentives to improve culturally competent practice and knowledge with
           mainstream service providers that serve American Indian/Alaska Native families.
    6. Address structural issues such a poverty, oppression, and effects of colonization that are
           the root causes of many American Indian/Alaska Native family problems.


Chapter 9: Foster Care and Permanency Issues for American Indian/Alaska Native Families
and Children
    1. Implement comprehensive strategies to improve services for American Indian/Alaska
           Native families and children with tribal and mainstream service providers.
    2. Support and increase the administrative capacity of tribes.
    3. Improve support available to kinship providers.
    4. Promote effective models of permanency planning for American Indian/Alaska Native
           children.


Chapter 10: Jurisdictional Issues
    1. Strengthen tribal capacity to provide the full range of human and judicial services to tribal
           children and families and other Indian families living on the tribe‘s reservation.
R13227-0                                            33
    2. Fund tribal judiciaries, particularly those in P.L. 280 states that have been under-funded
           in the past.
    3. Fully fund the Indian Child Protection and Family Violence Prevention Act.
    4. Enact legislation making tribes eligible for direct funding under Title IV-E of the Social
                                                      th
           Security Act (S. 331/H.R. 443 in the 108 Congress).
    5. Encourage intergovernmental agreements between tribal and state child welfare
           agencies and tribal, state, and federal law enforcement agencies, and provide funding for
           same.
    6. Provide training for state court judges and agencies on the Indian Child Welfare Act and,
           more generally, the underlying principles of federal Indian law.
    7. Make available federal funding to compile tribal codes that adopt tribal law and custom
           definitions that should be applied by state courts as a matter of federal law pursuant to
           the Indian Child Welfare Act.
    8. Enact legislation narrowing the good cause exception to the transfer of jurisdiction to
           tribal courts section in the Indian Child Welfare Act to ensure that tribes have
           presumptive jurisdiction over off reservation cases as contemplated in the Holyfield case.
    9. Enact legislation disavowing the existing Indian family exception so that the provisions of
           the Indian Child Welfare Act will be applicable to all Indian children involved in child
           custody proceedings.
    10. Enact legislation recognizing tribal jurisdiction over non-Indians who criminally abuse
           Indian children in Indian Country.
    11. Ensure through legislation, tribal-state agreements, and/or justice department civil rights
           litigation the right of Indian children to have non-discriminatory access to state services
           regardless of whether they fall within the jurisdiction of the state or the tribe.
    12. Regularly review state systems to ensure that they are adequately complying with the
           Indian Child Welfare Act.
    13. Amend the Indian Child Welfare Act to include some of the improvements that can be
           found in such state laws as the Iowa Indian Child Welfare Act.




Chapter 11: Services Integration
    1. Provide direct funding to tribes from the Title XX Social Services block grant, Title XIX
           Medicaid, and Title IV-E Foster Care and Adoption Assistance of the Social Security Act
           and Mental Health Services block grants.
    2. Create a discretionary grant program under the Child Abuse Prevention Treatment Act
           (CAPTA) specifically for tribes, which fosters, demonstrates, and disseminates
           information about promising practices for addressing child abuse and neglect and
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           specifically funds research and demonstration of integrated service models in tribal child
           welfare.
    3. Require all federal agencies to review grant and formula programs in which tribes
           participate for opportunities to support integrated service models in child protection and to
           coordinate those efforts across departments.




                                            INTRODUCTION


           Few, if any, government responsibilities are as important as the protection of children and
the support of families. The ability to respond effectively to child abuse and neglect is integral to
maintaining a thriving society in which individuals and families can function at their highest levels.



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                                                                                                                   1
In Indian Country, the need for these services is critical: American Indian and Alaska Native
families have some of the highest exposure of any racial group to many of the documented risk
factors for child abuse and neglect, such as poverty, single-parent households, number of
mothers having their first child under the age of 20, and alcohol and substance abuse (Indian
Health Service [IHS], 2000). An analysis of existing national data reveals that American
Indian/Alaska Native children are abused and neglected at rates higher than the national
average, and the number of reported cases of abuse or neglect of American Indian/Alaska Native
children is increasing (Earle & Cross, 2001). The challenge for tribal governments has been to
develop more effective responses to child abuse and neglect that reflect their community values,
given scarce funding and service barriers related to federal policies and available programs. For
state governments, the challenge has been to understand and competently carry out federal law
to support tribal governments and Indian organizations in building capacity to improve outcomes
and develop services that are appropriate to American Indian/Alaska Native children and families.
            In their 1998 article entitled ―Sovereignty and Nation-Building: The Development
Challenge in Indian Country Today‖, authors Steven Cornell and Joseph P. Kalt emphasize the
importance of citizen well-being for successful community development In Indian Country. The
authors identify the importance of building a government infrastructure that is in alignment with
the community‘s values and culture and that invests in services to improve citizens‘ well-being.
Child abuse and neglect is one of the most serious challenges to community well-being that tribes
face today, but tribes have demonstrated that barriers can be surmounted and that self-
determination for tribal governments is the best path for developing effective solutions. To best
serve individual American Indian/Alaska Native children and their families, tribal services must
play a key role regardless of whether children are living on or off tribal lands.
            This report was developed through a contract between the Bureau of Indian Affairs (BIA)
and the National Indian Child Welfare Association (NICWA) to fulfill a request by the United
States Congress in the 2003 Interior and Related Agencies Appropriations Conference Report for
fiscal year 2003 (House Report 108-10) to produce a report dealing with child abuse/child welfare
affecting American Indian/Alaska Native children. The National Indian Child Welfare Association
assembled a group of leading researchers and practitioners to study the most current research,
literature, data, public policies, and practice and to develop a report that would inform Congress
and others as to the current state of efforts to address child abuse and neglect among American
Indian/Alaska Native children and strategies for overcoming the barriers. It is our hope that this


1
    This paper uses the term ―American Indian and Alaska Native‖ to refer to the 334 federally recognized American Indian
tribes and associated tribal members in the contiguous 48 states as well as the 229 federally recognized tribal
governments and associated tribal members in Alaska. The author prefers these specific terms because much federal
legislation and policy uses these terms. The popular alternative ―Native Americans‖ can be confusing, as it also includes
Native Hawaiians and Pacific Islanders, who are legally and politically distinct from American Indian and Alaska Native
tribal governments.


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report will also be useful in educating state lawmakers, tribal leaders, students, program
administrators, and others interested in furthering the well-being of American Indian/Alaska
Native children who are victims of child abuse or neglect.
           This is the first comprehensive national examination of child abuse and neglect/child
welfare services to American Indian/Alaska Native children and families ever produced. Previous
studies in this area have been more regional in focus or have more narrowly targeted
implementation of the Indian Child Welfare Act of 1978 (ICWA) (25 USC 1901 et. seq.) or other
federal child welfare programs as applied to tribes.
           The report is organized into separate chapters that each address an aspect of child
welfare practice, policy, program administration, or systems integration impacting American
Indian/Alaska Native children and families. The report consists of an executive summary, an
introduction, 11 chapters covering a variety of key child welfare topics, and conclusions and
recommendations.
           Understanding how a response to an initial report of child abuse or neglect of an
American Indian/Alaska Native child may be handled and what may follow is complex. Child
welfare cases involving American Indian/Alaskan Native children may engage tribal, federal,
state, and/or private agencies, often with different philosophies and policies that guide their
response, which creates a complexity for child welfare service delivery that is unparalleled
anywhere else in child welfare practice in the United States. Coordination between these multiple
agencies can be problematic and lead to disputes over jurisdiction, service responsibility, and
direction of the case plan that leave American Indian/Alaska Native children and families in limbo.
Tribal governments, which have legal authority to intervene in state child custody proceedings
involving their tribal members, many times are not heard in these cases despite their efforts to
have a voice; such failures result in missed opportunities to utilize tribal and extended family
resources for the placement and treatment of tribal children and families. In situations where
tribal or extended family involvement is either not pursued or not valued, American Indian/Alaska
Native children often stay in care longer with greater risk for disruption of the placement.
However, where tribes and states have cooperated effectively, we see stronger relationships with
clearer roles and responsibilities, which improve the identification of tribal and extended family
resources and permanent placements. , Appropriately, this, in turn, brings to bear the combined
resources of tribes and state governments.
           On tribal lands, where tribal governments have jurisdiction over child welfare matters
involving their members, a lack of resources and ineffective federal policies often prevent tribal
governments from being able to fully exercise their authority and responsibility. Gaps in federal
policy have left tribal governments ineligible to receive funding from two of the federal
government‘s largest funding sources for child welfare services: Title IV-E and Title XX. In both
of these programs, tribes are ineligible to receive direct funding and can only receive funding
through the discretion of a state government. Under the two next largest federal funding sources
for child welfare services, the Title IV-B programs Child Welfare Services and Promoting Safe
R13227-0                                           37
and Stable Families, not all tribes are eligible to receive funding, and the combined total funding
available to tribes is less than $11 million annually. In some cases, federal policies mandate
requirements for providing services that are inappropriate or ineffective in American Indian/Alaska
Native communities, such as treating relative care providers the same as non-relative. These
funding and policy barriers have been the main reason tribal governments are not able to offer
more comprehensive and effective services and to provide support to state agencies that have
custody of tribal children.
           Decades of federal policies that encouraged the removal of American Indian/Alaska
Native children by public and private agencies and their placement in institutions and foster and
adoptive homes outside their tribal communities and culture have also played an important role in
the prevalence of child abuse and neglect in American Indian/Alaska Native communities. These
policies, which operated throughout the 19th and 20th centuries, ignored tribal culture and its
value for protecting American Indian/Alaska Native children and healing American Indian/Alaska
Native families. The results were disastrous for American Indian/Alaska Native children, families,
and communities; generations of families lost contact with their children, and their children lost
exposure to cultural ways that play a pivotal role in preparing individuals for family and community
life. Subsequently, forces destructive to family cohesion, such as alcoholism, substance abuse,
and violence became more prevalent in most American Indian/Alaska Native communities.
           The Indian Child Welfare Act, which was passed in response to the massive removals of
American Indian/Alaska Native children by public and private agencies, increased opportunity for
improving the status of Indian children and families in the child welfare system. In the 25 years
since the passage of ICWA, there have been notable improvements in how tribes and states
collaborate with each other on child welfare services and in the quality of responses to child
abuse and neglect by tribal governments.
           The Indian Child Welfare Act provided Indian tribes with new funding to establish their
own child welfare services and respond to child welfare cases under state jurisdiction, as well as
establishing procedures for the placement of American Indian/Alaska Native children in foster,
adoptive, and institutional care and standards for rehabilitative services to Indian families in state
care. The law was also a catalyst for Indian tribes and states to work more closely together on
developing training, services, and procedures for working with American Indian/Alaska Native
children and families. While Indian tribes still lag behind states in access to federal child welfare
funding, many tribes have been successful in developing child welfare systems that provide
substantial services to Indian children. Many of these same tribes have intergovernmental
agreements with states that seek to improve services and outcomes for American Indian/Alaska
Native children and families.
           The availability of accurate and reliable data that could inform administrators and
policymakers in an ongoing fashion is also problematic. The Indian Child Welfare Act, which is
the primary law governing child welfare services to American Indian/Alaska Native children and
families under state care, is the only federal child welfare program that does not have a federal
R13227-0                                           38
services review attached to it. Tribes are also not included in key federal child welfare programs,
such as Title IV-E programs, which require regular submittal of data and provide support for
developing child welfare databases.
           The first chapter in this report discusses the background and history of child abuse and
neglect in Indian Country. It covers tribal natural helping systems, the impact of boarding
schools, and federal policies that shaped tribal capacity to respond to child abuse and neglect.
The chapter also looks at the role federal policies played in the prevalence of risk factors and
deterioration of community protection factors for the prevention of abuse and neglect
           Chapter two of the report discusses tribal/state relations and their impact on child welfare
service delivery to American Indian/Alaska Native children and families. Relationships between
governments are among one of the most important factors in determining the availability of
services, the appropriateness of those services, and the level of collaboration that will ensue in
child welfare for American Indian/Alaska Native children and families. The chapter examines how
these relationships have been influenced by external policies and practices and highlights efforts
to address the barriers and development of promising practices to promote better collaboration
and access to services. Within tribal governments, much as in state and federal government
structures, the effort to increase efficiency and effectiveness is an ongoing task.
           Databases, key sources of information for policymakers, planners, and researchers, can
describe important information about the incidence and characteristics of abuse and neglect.
Chapter three sheds some light on issues in the collection of data on American Indian/Alaska
Native children who have been abused or neglected and the implications for interpretation of
existing data.
           Chapter four details the adverse effects of child abuse and neglect on American
Indian/Alaska Native children, and effects on their families and tribal communities. While many
people are familiar with the more obvious effects of maltreatment on children, there are also less
well known but equally threatening and pervasive effects on American Indian/Alaska Native
children, their families, and tribal communities.
           In the area of child abuse prevention, where few resources are typically available,
creative and informal partnerships can go a long way toward developing healthy and thriving
children. In Indian Country, these efforts take on varied and innovative forms, which are
described in chapter five on child abuse prevention.
           Child protection services can be some of the most complex services to render, especially
in Indian Country where service delivery may involve multiple jurisdictions (tribal, federal, and
state). Jurisdictional issues, limited resources, policy gaps, and geographic isolation all influence
how reports of child abuse and neglect are made and responded to. Chapter six examines these
and other issues that shape child protection in Indian Country.
           Chapter seven examines the impact of child sexual abuse on American Indian/Alaska
Native children, how it is reported and investigated, and efforts to address this form of abuse

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through treatment services. This chapter also identifies ways in which tribal services are involved
and barriers to their involvement.
           Family preservation and family support, important concepts and services that help
families stay intact, are the focus of a chapter that explores how efforts to strengthen American
Indian/Alaska Native families have fared in Indian Country. Chapter eight chronicles the
struggles of tribal communities and families trying to retain their cultural heritage and the natural
helping systems that support their families, such as the extended family network.
           In chapter nine on foster care and permanency, the author provides insight into the role
of extended families in permanency in an American Indian/Alaska Native context, including some
discussion of how tribal communities are looking at permanency since the passage of the
Adoption and Safe Families Act. A discussion of ICWA and its role in supporting appropriate
permanent placements is also included.
           Tribal courts and tribal jurisdiction, areas often overlooked and misunderstood, provide
the basis for effective responses and services to abused or neglected American Indian/Alaska
Native children and their families. Chapter ten clarifies how Public Law 280, key court decisions,
and ICWA interface to guide determinations of who has jurisdiction and what type of jurisdiction is
applied. This chapter also discusses the function and operation of tribal courts in child welfare
matters involving American Indian/Alaska Native children.
           Tribal governments are constantly looking for new opportunities to integrate services and
leverage new resources. Chapter eleven highlights the movement in Indian Country to innovate
through systems integration. The author reviews tribal efforts to access new funding resources
and leverage existing ones while working with a host of different service providers and partners
(private and public) to expand opportunities to improve services.
           The final chapter provides a brief summary of preceding chapters and recommendations.
The recommendations are divided into policy, practice, and research areas that address the
subject matter covered in this report.
           The overall well-being of American Indian/Alaska Native children and the effectiveness of
responses to child abuse and neglect are both directly tied to how well tribal governments can
function in this area. Relying on outside governments or agencies to guide and implement these
services for American Indian/Alaska Native children has proven to be an ineffective response in
the past, and this continues to hold true today. On the Fort Berthold Reservation in North Dakota,
the Three Affiliated Tribes were experiencing many of the same problems, such as foster care
drift and increasing numbers of children being placed in substitute care, as state child welfare
systems. The tribe began to rethink the way it was providing services, which were based in large
part on state models of practice, to American Indian/Alaska Native families. By shifting the
paradigm for family preservation to approaches that emphasized tribal cultural practices and by
placing more reliance on the natural helping system in its community, the tribe was able to reduce
its foster care population by over 40% in just a few years and to create greater permanency and
family connections for those children affected (Red Horse, Martinez, & Day, 2001).
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           Harvard University Professor Steven Cornell, in a paper presented at a symposium on
―Capacity Building and Sustainability of Tribal Governments: The Development of Social Welfare
Systems through Preferred Futuring‖ at Washington University, St. Louis, May 21-23, 2002,
argues that institutional capacity is an essential element in the effort by American Indian/Alaska
Native nations to deal with welfare dependency and with recent changes in how welfare is
organized and delivered. Building institutional capacity is a necessary and urgent task. This
thinking also applies to child welfare services involving American Indian/Alaska Native children
and families. Without the necessary expertise of American Indian/Alaska Native professionals,
tribal governments, and others in the community who are invested in the protection of American
Indian/Alaska Native children, we will continue to see large numbers of children being removed
from their homes and placed outside of their families and tribal communities, continuing a
decades long pattern of ignoring the needs of American Indian/Alaska Native children and the
responses we know are needed to ensure a better future. Enhancing tribal capacity serves not
only children and families but also other entities that have a role in providing services to this
population. When culturally appropriate services are available, we see improved outcomes for
American Indian/Alaska Native children and families, which is a victory for all those involved.




                                           REFERENCES


Cornell, S. (2002). What is institutional capacity and how can it help American Indian nations
           meet the welfare challenge? (Paper presented at the ―Capacity Building and
           Sustainability of Tribal Governments: The Development of Social Welfare Systems
           through Preferred Futuring‖ conference). St. Louis, MO: Washington University.



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Cornell, S., & Kalt, J. P. (1998). Sovereignty and nation-building: The development challenge in
           Indian Country today. American Indian Culture and Research Journal, 22(4).


Earle, K. A., & Cross, A. (2001). Child abuse and neglect among American Indian/Alaska Native
           children: An analysis of existing data. Seattle, WA: Casey Family Programs.


Indian Health Service. (2000). Trends in Indian health 1998–1999. Rockville, MD: U.S.
           Department of Health and Human Services, Indian Health Service. Available at
           http://www.ihs.gov/PublicInfo/Publications/trends98/trends98.asp.


Red Horse, J. G., Martinez, C., & Day, P. (2001). Family preservation: A case study of Indian
           tribal policy. Seattle, WA: Casey Family Programs.




       Historical Factors Influencing Child Abuse and Neglect in Indian Communities
                                        Kathleen A. Fox, PhD


                                              Abstract


           The abuse and neglect of American Indian/Alaska Native children must be viewed in the
context of the history of abuse and neglect of all children in the United States, as well as in the
R13227-0                                          42
context of the changing relationship of sovereign American Indian/Alaska Native nations to the
United States government. Although early efforts to prevent child abuse were supported by
common law, the history of child protection officially began with the creation of the Society for the
Prevention of Cruelty to Children in 1874. The most important piece of legislation protecting
children from abuse and neglect, the Child Abuse Prevention and Treatment Act (CAPTA; P.L.
93-247), was not passed until 1974—one hundred years after the society was created. Indian
Country was subject to the enactment of U.S. laws affecting children, but the application of laws
and policies was shaped by the relationships between each of the 550 Indian nations, the federal
government, and each state government. Changes to these relationships may be categorized as
occurring in three major eras: forging a relationship (1492-1830s); allotment and assimilation
(1830s-1960s); and the most recent and most hopeful era, Indian community resurgence (1960s-
present). In each of these extended periods, attitudes toward Native American/Alaska Native
communities and their members were subject to laws and policies that influenced their ability to
care for and protect their children. These laws and policies were marked by prejudice and led to
loss of language, culture, and tradition and to poverty and intense psychological damage. During
the current era of resurgence, there is new hope that American Indian/Alaska Native communities
will be able to take charge of their own child welfare programs and return to the relatively safe
and functional childcare approaches used historically to prevent and remedy child abuse and
neglect.




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                                             Introduction


           Each week, child protective services (CPS) agencies throughout the United States
receive more than 50,000 referrals alleging that children have been abused or neglected.
Nationally, an estimated 903,000 children were victims of abuse or neglect in 2001, and children
in the age group of birth to 3 years accounted for 27.7% of victims. In addition, an estimated
1,300 children died of abuse or neglect, and children younger than one year accounted for 40.9%
of fatalities (U.S. Department of Health and Human Services [USDHHS], 2004). National statistics
on American Indian/Alaska Native children show that these children have reported rates of abuse
and, especially, neglect higher than those for other racial or ethnic groups. However, these rates
are suspect for a number or reasons, and true rates of abuse and neglect in Indian Country are
not currently available (Fox, 2003).
           This chapter discusses the history of legislation and policy regarding the abuse and
neglect of a small but unique group of these children, the approximately 2% of victims who are
enrolled American Indians/Alaska Natives. The polices and legislation discussed apply to all
American Indian/Alaska Native children and have indirectly affected Canadian First Nations and
Metis Indian children as well. The introduction explains the background of laws affecting child
abuse and neglect of all children in the United States. This is followed by a discussion of the
history of tribal/state/federal relations as they have affected child abuse and neglect in Indian
Country. This history is broken down into three broad areas: forging a relationship (1492-1830s),
allotment and assimilation (1830s-1960s), and Indian community resurgence (1960s-present).
           In 1874, the Society for the Prevention of Cruelty to Children was created to protect
children from maltreatment, and states and local governments passed their own laws defining
mistreatment as endangerment, deprivation, physical cruelty, and exposure to the weather
(Giovannoni & Becerra, 1979). Prior to that time, common law supported taking children from
their families to protect them if necessary. This included removing children from indigent families
in order to break the cycle of poverty (Wells, 1995).
           The abuse and neglect of children was not addressed on a national basis until CAPTA
was passed in 1974. The Child Abuse Prevention and Treatment Act established the National
Center on Child Abuse and Neglect to ―assist states and communities with the prevention
identification and treatment of abuse and neglect through the allocation of funds appropriated by
Congress‖ (Brissett-Chapman, 1995). It was reauthorized in 1978, 1984, 1988, and 1996, and
with each reauthorization, amendments have been made to CAPTA that have expanded and
refined the scope of the law. The Child Abuse Prevention and Treatment Act was most recently
reauthorized on June 25, 2003, by the Keeping Children and Families Safe Act of 2003 (P.L. 108-
36). CAPTA, as reauthorized and amended by P.L. 108-36, defines child abuse and neglect as
follows:



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           [t]he term ―child abuse and neglect‖ means, at a minimum, any recent act or
           failure to act on the part of a parent or caretaker, which results in death, serious
           physical or emotional harm, sexual abuse or exploitation, or an act or failure to
           act which presents an imminent risk of serious harm. (USDHHS, 2004)


           During the 1960s and 1970s, the federal government recognized the need for uniform
national policies to address child abuse and neglect (Helfer & Kempe, 1968), and policymakers
began creating funding strategies to enforce those policies through the power of the purse
strings. The Child Abuse Prevention and Treatment Act authorized grants to states to address
child abuse issues with no regard for the welfare of tribal children who were not directly covered
under this legislation. The Indian Child Protection and Family Violence Prevention Act, passed in
1990 (P.L. 101-630), was designed to rectify this by providing for the investigation and reporting
of incidents of abuse and neglect on tribal lands. However, regulations accompanying this law
were never written, and Congress has never appropriated sufficient funding (Cross, Earle, &
Simmons, 2000). Over the years, problems related to state/tribal jurisdiction and oversight have
led to extensive damage to American Indian/Alaska Native families and children. In order to
understand the inter-relationships among tribes, states, and the federal government, it is
necessary to briefly review the maze of public laws and policies applied to tribes over the past
four centuries.


    History of Major Policy/Legislative Influences on Child Abuse and Neglect in Indian
                                                 Country
           The relationships among Indian nations, the United States, and individual states have
been complicated by various laws, policies, and federal and state government decisions and
actions affected over the past 300 years. An understanding of these is central to an
understanding of the current state of child abuse and neglect in Indian Country. The historical
periods of tribal/federal relationships may be broadly broken down into three major time frames:


    1. Forging a relationship (1492-1830s)
    2. Allotment and assimilation (1830s-1960s)
    3. Indian community resurgence (1960s-present)


Forging a Relationship (1492-1830s)
           Early travelers to this North American continent found millions of indigenous people long
established here. Initial primarily respectful relationships between the aboriginal North Americans
and the immigrants were gradually tested and broken as more and more settlers arrived. Contact
between these two disparate groups was fraught with sickness, treachery, heartbreak, and death
for the indigenous people and has been characterized as a period of genocide. Estimates are that

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between 3.5 and 13 million of the original inhabitants of North America were wiped out between
1500 and 1900 (Weaver & Yellow Horse Brave Heart, 1996).
            During colonization, the British government treated Indian nations as sovereign nations
and increasingly assumed the position of their protector against the encroachment of the
American colonists. After the American Revolution, the United States Constitution codified this
role by defining Indian nations as ―sovereign‖ and by placing Indian affairs in the hands of the
central rather than the state government (Canby, 1998). The Constitution was written at a time
when Native people were numerous and powerful, and those framing this document wanted to
enforce a peaceful co-existence between tribal groups or individuals. The fledgling U.S. President
George Washington‘s Fifth Annual Message to Congress on December 3, 1793, reflects this
attitude:


            After the [Congress] shall have provided for the present emergency, it will merit
            their most serious labors to render tranquility with the savages permanent by
            creating ties of interest (Prucha, 1990).


            The basic pattern of federal Indian Law was set in a series of Trade and Intercourse Acts
passed between 1790 and 1834 whose basic policy was to separate Indians and non-Indians and
to subject nearly all interaction between the two groups to federal control. The federal
government dealt with the tribes during this time primarily by treaty, while federal agents were
appointed to be the official liaisons with tribes. These agents worked under the auspice of the
War Department (Canby, 1998) and eventually the Bureau of Indian Affairs (BIA).
            The Bureau of Indian Affairs is the central oversight agency for tribes. Established as part
of the U.S. War Department in 1824, the BIA used army personnel to provide health care to tribal
members (Attneave, 1984). Oversight of the BIA was transferred from the War Department to the
Department of the Interior, where it now resides, in 1849. The director of the BIA is the
Commissioner of Indian Affairs and reports to the U.S. Department of the Interior. The central
office of the BIA is in Washington, D.C., and there are twelve area offices located throughout the
country. About 80 area offices serve one or more reservations.
            As European migration increased, traditional tribal practices in child rearing became more
susceptible to the influences of the dominant society. In the early 1800s, a major evangelistic
movement took place in the United States, and this encouraged missionary activities, including
the conversion of Indians. These activities led indirectly, in 1819, to the passage of the
―Civilization Fund Act,‖ one of the first federal laws targeting Indian children. This act authorized
grants to private agencies, primarily churches, to establish programs to ―civilize the Indian.‖ No
money was given to the tribes or to tribal people. The Civilization Fund financed benevolent
efforts to ―provide against the further decline and final extinction of the Indian tribes‖ by teaching
them mainstream habits and religion (Prucha, 1990)—in other words, it sought to assimilate and
acculturate American Indian/Alaska Native children.
R13227-0                                                46
           While the BIA continued to oversee Indian affairs from Washington, D.C., more and more
illegal demands by settlers for Indian lands led Congress to pass laws favoring the quickly
burgeoning majority of European descent and the states in which they were located. Sovereignty
was ignored with the passage by Congress of the Indian Removal Act of 1830, which granted
power to the U.S. President to remove ―any tribe or nation of Indians now residing within the limits
of any of the states or territories‖ to uninhabited land ―west of the river Mississippi‖ (Jahoda,
1995). When the Cherokee Nation of Georgia challenged this law, the case was decided in favor
of the tribes by the U.S. Supreme Court (Cherokee Nation vs. Georgia, 1931; Worchester v. The
State of Georgia, 1832). These two court decisions were crucial both in reaffirming tribal
sovereignty and in establishing tribes as ―dependent‖ on the federal government (Canby, 1998).
President Andrew Jackson, however, overruled the Supreme Court and gave the state of Georgia
permission to remove the tribes anyway, which lead to the infamous ―trail of tears.‖
           During this first long period of American and tribal contact, the relationship between the
indigenous people of North America and the European invaders gradually evolved from one of
mutual respect to a more complicated relationship in which the tribes were seen as separate but
dependent, entities whose members were ripe for assimilation. During the next century, the
federal government would try to remove this equal-but-dependent status of tribes by attempting in
several ways to fully assimilate American Indian people into the larger society of the United
States.


Allotment and Assimilation (1830s-1960s)
                                                                   th
           From the period of the 1830s through the end of the 19 century, incursions on Indian
rights and lands were widespread. Among the most egregious acts was the Sand Creek
massacre of 1865. A large encampment of Arrapaho and Cheyenne, friendly to the U.S.
government and flying an American flag, were brutally massacred by a division of Colorado
troops (Prucha, 1990). This incident illustrates the lack of respect and law accorded American
Indian people and their lands as the beleaguered tribes finally gave up the physical fight for
autonomy.
           As the balance of power continued to shift, American Indians were allotted smaller and
smaller portions of their once endless territories, and the U.S. government increasingly took on
the role of overseer of those territories. Inevitably, conflicts arose, and the now less-powerful
tribes were on the losing side. The Bureau of Indian Affairs had full authority over the activities of
Indian people, and American Indian families were forced to adapt to reservation life.
           The Dawes Act, also known as the General Allotment Act of 1887 (24 Stat. 388),
authorized the President of the United States to allot portions of reservation land to individual
Indians (who could then sell it to non-Indians), and allowed the government to negotiate with the
tribes for the disposition of all ―excess‖ lands remaining after allotments. This reversal of the
communal land practice of the tribes led to a decline in the total amount of Indian lands from 138
million acres in 1887 to 48 million acres in 1934, with about 20 million acres of the remaining land
R13227-0                                           47
desert or semi-desert (Canby, 1998). The allotment of land and the restriction of having to live on
it also removed a major source of pride for Indian men, whose recognition as warriors and
hunters was taken away. The women suffered as well as they saw their children removed and
their husbands suffer as their traditional roles were taken away.
           In 1934, the Indian Reorganization Act (IRA) ended the practice of allotment and
authorized the federal government to return ―surplus‖ lands to the tribes. Recognizing that the
Indian tribes were not going to go away, the act also authorized tribes to adopt constitutions and
governments following the U.S. pattern of divided executive, legislative, and judicial branches and
allowing for election of leaders. Some tribes have found that the IRA model is not a good fit with
their traditions (Pevar, 2002). According to Vine Deloria:


           True democracy was more prevalent among Indian tribes in pre-Columbia days
           than it has been since. Despotic power was abhorred by tribes that were loose
           combinations of hunting parties rather than political entities. Conforming their
           absolute freedom to fit rigid European political forms has been very difficult for
           most tribes, but on the whole they have managed extremely well. Under the
           Indian Reorganization Act, Indian people have generally created a modern
           version of the old tribal political structure and yet have been able to develop
           comprehensive reservation programs that compare favorably with governmental
           structures everywhere. (1988)


           Apart from taking direct action regarding tribal structure and governance, the federal
government also took steps to acculturate Indian children, as it had with the earlier Civilization
                                th
Fund Act. Throughout the 19 century, the treatment and fate of American Indian children
became a crucial pawn in the battle for dominance of the indigenous American people. By the
mid 1880's, teaching Indian children mainstream ways was considered the easiest and cheapest
way to deal with the proud and persistent Indian nations, as wars had been found to be
prohibitively expensive (Adams, 1995; Nabokov, 1991). To force assimilation, off-reservation
boarding schools were established in 1878. When their families objected, Native children were
frequently taken by force to these institutions, often located hundreds or thousands of miles from
the children‘s homes, never to return (Coolidge, 1977). Once there, they were forced to abandon
their traditional beliefs, customs, and traditions. Severe punishment in the form of beatings and
being chained and shackled, bound hand and foot, and locked in closets was not uncommon
(Johansen, 2000). The purpose of the boarding schools, to assimilate Indian children, reflected
the thoughts put forth in the Report of the Indian Peace Commission of 1868 as follows:


           Now, by educating the children of these tribes in the English language, these
           differences would have disappeared, and civilization would have followed at

R13227-0                                            48
           once. Nothing then would have been left but the antipathy of race, and that too is
           always softened in the beams of a higher civilization. (Prucha, 1990)


           Boarding school life was brutal for many who learned how to physically and mentally
abuse others and themselves at these institutions. The out-of-home placement and isolation of
children engendered by these schools led to a loss of self and, in many cases, to dysfunctional
behavior (George, 1997). Many left the boarding school experience with no clear identity, neither
white nor American Indian (Cross et al., 2000); some survivors who returned to their tribes or
nations were unable to pick up the thread of family life, inadvertently continuing the legacy of
abuse they themselves had suffered away from home (Yellow Horse Brave Heart, 1999). The
assimilationist policies of the boarding schools continued through the 1930s in the United States
and the 1950s in Canada. Meanwhile, the remaining American Indian families continued to suffer
under the influences of the dominant culture and the lack of a cohesive federal policy to address
their many problems exacerbated by the removal of their children.
           In 1924, Congress passed the Indian Citizenship Act (8 U.S.C.A. §1401 [b]), conferring
citizenship on all Indians not included in other federal legislation of the country and of the state in
which they were born. In 1941, the BIA Division of Welfare was formed, and, in 1944, cash
payments became the primary form of assistance to Indian families, although rations continued to
be given as well. Very little or no social services were provided to American Indian/Alaska Native
families and children.
           During the 1950s, the desire to fully assimilate tribes resulted in three additional activities
that further affected the ability of Indian tribes to maintain their own child welfare programs. These
were as follows:


    1. The Termination Act of 1953
    2. The relocation efforts of the BIA
    3. Public Law 280


           In 1953, Congress adopted a policy of ―termination‖ of Indian tribes in order ―as rapidly as
possible to make the Indians within the territorial limits of the United States subject to the same
laws and entitled to the same privileges and responsibilities as are applicable to other citizens of
the United States‖ (Canby, 1998). Between 1953 and 1966, Congress terminated 109 tribes,
most of them in Oregon and California (Pevar, 2002). Their relationship with the federal
government was ended, their lands were converted to private ownership, and their members
subjected to state laws. Policies such as the termination of tribes were eventually perceived as
being misguided and ineffective. After several years, the Menominees convinced Congress to
restore their federal-tribal relationship and their lands, and since that time, Congress has taken
the same action in regard to some of the other tribes. However, many tribes remain in limbo as a

R13227-0                                             49
result of this policy (Canby, 1998). Child welfare policy and practice among these 109 tribes has
suffered from the uncertainty generated by the termination policy.
             During this time, the BIA was also encouraging tribal members to leave the reservations
through its program of ―relocation,‖ which offered grants to Indians who would seek work in
metropolitan centers. About a third of those who left returned home after discovering there were
no jobs in the cities for them (Pevar, 2002). The relocation of families to urban areas of the
country further weakened the support network of children in need and the families, extended
family, and community structure of tribes.
             Another piece of legislation that undermined the authority of tribes was P.L. 83-280 of
1953 (18 U.S.C. § 1162). P.L. 280 authorized the states to arrest and prosecute Indians who
commit crimes on reservations in six states: California, Minnesota (except for the Red Lake
Reservation), Nebraska, Oregon (except for the Warm Springs Reservation), Wisconsin (except
for the Menominee reservation), and, in 1958, Alaska (except for the Annette Islands). P.L. 280
also authorized the other states to acquire jurisdiction at any time by simply passing a law
agreeing to do so. The Indian Civil Rights Act of 1968 amended P.L. 280 so that the states could
not take over jurisdiction without tribal consent. Since 1958, 10 additional states opted to take
partial jurisdiction or jurisdiction only for certain areas of law (Arizona, Florida, Idaho, Iowa,
                                             2                   3        4
Montana, Nevada, North Dakota, South Dakota, Utah, and Washington) (Pevar, 2002; For
more information, see Chapter 10, ―Tribal Courts and Jurisdiction in Child Welfare‖.)
             Within the designated tribes in P.L. 280 states, the functions of tribal courts were
performed by state courts; this meant there were not tribal courts to participate in child protective
or child welfare decisions. In some instances, the states became responsible for tribal child
welfare. The BIA continued to provide services as well in many states, as the tribes at that time
were not empowered to provide their own services. Unfortunately, both the BIA and the states
either failed to reach Indian citizens with needed services or provided grossly inappropriate
services (Unger, 1977). By 1900, the rearing of Indian children was largely under the control of
the federal BIA. Tribes had been effectively stripped of all but the last vestiges of the natural
systems of child protection. Years later, similar misconceptions about cultural foundations for
Indian problems contributed to another devastating policy—the Indian Adoption Project.
             Removal of American Indian children to non-Indian families was widespread through the
                       th
middle of the 20 century. In 1958, the BIA, concerned with the number of children in boarding
schools or long-term foster care, contracted with the Child Welfare League of America (CWLA) to
provide a clearinghouse for the placement of American Indian/Alaska Native children with non-
Indian families (Slaughter, 1976). Little attention was paid, either by the BIA or CWLA, to
providing services for American Indian communities that would strengthen and maintain the
families of children in need. This Indian Adoption Project resulted in 395 American Indian children

2
    Civil jurisdiction over any reservation that gives consent, but no tribes have consented.
3
    All Indian Country with tribal consent, but no tribes consented.
4
 All Indian Country with tribal consent, but no tribes consented.
R13227-0                                                     50
being placed for adoption with non-Indian families (George, 1997; Mannes, 1995). The program
served as a model to the rest of the nation with near tragic results (Cross et al., 2000); it was so
successful that demand for Indian babies exceeded the capacity of the project (Fanshel, 1972).
As a result of these and similar policies, many American Indian children in this century have
grown up separated from their families of origin, away from their tribal localities, and outside their
cultures. Surveys by the Association on American Indian Affairs in 1969 and 1974 of states with
large Indian populations found that 25%-35% of American Indian children had been removed
from their homes of origin and placed in non-Indian homes, foster homes, or boarding schools
operated by the BIA and private organizations (George, 1997). The tragic, long-range effects of
the placement of thousands of children away from their homes included not only effects on
individuals but also consequences for the well-being of entire communities of American Indian
people (Byler, 1977; Fanshel, 1972; Robin, Long, Rasmussen, Albaugh, & Goldman, 1998).
           The complexity of the history of American Indian child welfare has contributed to
confusion by policymakers and bureaucracies about who is responsible for what. This complexity
has also contributed to the under-funding of tribes and tribal child welfare programs and to the
lack of autonomy necessary to operate child welfare programs in Indian Country. The tangle of
laws, jurisdiction, and responsibility for Indian children began to receive attention and, to some
extent, rectification beginning with the Civil Rights era of the 1960s.


Indian Community Resurgence (1960s-Present)
           From the 1960s on, Congress has primarily supported the self-determination and viability
of tribes while recognizing its role in safeguarding the welfare of American Indian/Alaska Native
people. For example, the Indian Civil Rights Act of 1968 applied the provisions of the U.S. Bill of
Rights to tribal members living on reservation land and also included a provision to prohibit states
from acquiring any more jurisdiction over tribes through P.L. 280 (Pevar, 2002).
           The large-scale destruction of Indian families that resulted from federal and state policies
finally led to an outcry by professionals, families, authors, and agencies dealing with American
Indian child welfare in the 1960s and 1970s. Indian leaders such as Roger Jim of the Yakama
Tribal Council and the National Congress of American Indians were also outraged and vocal
about the treatment of Indian children and families (D. Milligan, Small Tribes Organization of
Western Washington, personal communication, June 22, 2004). Several articles written by
American Indian/Alaska Native scholars during this time appeared in a slim volume entitled The
Destruction of American Indian Families, published by the Association on American Indian Affairs
in 1977. Several chapters in this book, edited by Steven Unger, ranged from a description of ―Kid
Catching‖ on the Navajo reservation by overly zealous government agents who were instructed to
send Indian kids away to boarding schools to sober discussions of the demise of Indian families
and the Indian way of life based on federal policy. The introductory chapter made several
recommendations, which are as follows:

R13227-0                                           51
           1. Revise the standards governing Indian child-welfare issues to provide a more rational
               and humane approach to questions of custody and to encourage more adequate
               training of welfare officials;
           2. Strengthen due process by extending to Indian children and their parents the right to
               counsel in custody cases and the services of expert witnesses, subjecting voluntary
               waivers to judicial review, and encouraging officers of the court who consider Indian
               child welfare cases to acquaint themselves with Indian cultural norms and social
               norms;
           3. Eliminate the economic incentives to perpetuating the crisis;
           4. End coercive detribalization and assimilation of Indian families and communities and
               restore to P.L. 280 tribes their civil and criminal jurisdiction;
           5. Provide Indian communities with the means to regulate child welfare matters
               themselves;
           6. Provide Indian communities with adequate means to overcome their economic,
               educational, and health handicaps;
           7. Provide Indian families and foster or adoptive parents with adequate means to meet
               the needs of Indian children in their care;
           8. Provide for oversight hearings with respect to child welfare issues on a regular basis
               and for investigation of the extent of the problem by the General Accounting Office;
               and
           9. End the child welfare crisis, both rural and urban, and the unwarranted intrusion of
               government into Indian family life. (Byler, 1977)


           Byler concluded by stating, ―Measured in numbers, measured in terms of human
suffering, and as a measure of the condition of our society and our government, the Indian child
welfare crisis is appalling . . . If even one child is taken unjustly, all children are threatened.‖ The
Association on American Indian Affairs, the publisher of the Unger book, took the lead in making
sure its recommendations were met.
           Widespread focus on the injustices of the past culminated in the passage of the Indian
Child Welfare Act (ICWA) (P.L. 95-608, 1978), which returned the responsibility for decisions
about the welfare of their children back to tribes. ICWA was passed to protect the integrity of
tribes and the heritage of Indian children. It returned jurisdiction over child custody proceedings
regarding American Indian/Alaska Native children in state courts to the tribes. Tribes that did not
already have jurisdiction had to petition the BIA to be granted exclusive child welfare oversight (D.
Milligan, Small Tribes Organization of Western Washington, personal communication, June 22,
2004). Child custody proceedings covered by the law include foster care placement, termination
of parental rights, pre-adoptive placement, and adoptive placement. ICWA applies to children
who are members of or eligible to be members of an Indian tribe and who are the biological
children of members of federally recognized tribes or Alaska villages or corporations. The law
R13227-0                                              52
includes requirements for notification of the child‘s tribe, type of notice required, tribal rights to
intervene in proceedings, rights to counsel, standards of proof, requirements for services to be
provided, and a hierarchy of placement. One of the most far-reaching requirements is that
termination of parental rights cannot occur until the petitioning party establishes ―beyond a
reasonable doubt‖ that the continued custody by the parents or Indian custodian would result in
serious emotional or physical harm to the child. Bureau of Indian Affairs guidelines do not
describe circumstances that would constitute serious emotional or physical abuse, although they
do specify what does not constitute abuse:


           Evidence that only shows the existence of community or family poverty, crowded
           or inadequate housing, alcohol abuse or nonconforming social behavior does not
           constitute clear and convincing evidence that continued custody is likely to result
           in serious emotional or physical damage to the child. (Bureau of Indian Affairs
           [BIA], as referenced in Jones, 1995)


With its many provisions designed to right the wrongs of previous federal policy, ICWA has had a
substantial impact on the practices and procedures of courts, state social service agencies, and
private adoption agencies in this country regarding the placement and removal of American
Indian/Alaska Native children.
           About the same time, the Indian Self-Determination and Education Assistance Act of
1975 (P.L. 93-638) authorized the Secretary of the Interior and the secretary of Health,
Education, and Welfare to enter contracts with tribes to manage federally operated programs
such as social welfare and child abuse and neglect services, themselves (Canby, 1998). Many
tribes have taken this opportunity to operate the child welfare programs on tribal land that had
formerly been operated by the BIA or the Indian Health Service (IHS).
           Several laws or amendments to previous legislation that were passed from 1980
(Adoption Assistance and Child Welfare Act, P.L. 100-294) through 1997 (Adoption and Safe
Families Act [ASFA], P.L. 105-89) affect Indian child welfare to this very day. The Adoption and
Safe Families Act has been misinterpreted by some states to supercede ICWA and has had
negative effects on non-federally recognized tribes, Canadian and Metis children living in the
U.S., and un-enrollable American Indian/Alaska Native children (D. Milligan, Small Tribes
Organization of Western Washington, personal communication, June 22, 2004). Please see
Chapter 9, ―Foster Care and Permanency Issues for American Indian/Alaska Native Families and
Children‖ for a more detailed discussion of issues around these Congressional actions.


           The modern era has seen a return of Indian sovereignty. According to Vine Deloria:
           Tribalism is the strongest force at work in the world today. And Indian people are
           the most tribal of all groups in America. They are also in the most advantageous
           position of any tribal people in the world. Using modern technological knowledge
R13227-0                                           53
           and having tremendous natural resources, Indian people can combine urban and
           rural life in a nationalistic continuum. (1988)




R13227-0                                             54
                                             REFERENCES


Adams, D.W. (1995). Education for extinction: American Indians and the boarding school
           experience. Lawrence, KS: University Press of Kansas.


Attneave, C.L. (1977). The wasted strengths of Indian families. In S. Unger (Ed.). The destruction
           of American Indian families. New York, NY: Association on American Indian Affairs.


Brissett-Chapman, S. (1995). Child abuse and neglect: Direct practice. In L. Beebe (Ed.),
                                            th
           Encyclopedia of social work. (19 ed.). Washington, DC: National Association of Social
           Workers Press.


Byler, W. (1977). The destruction of American Indian families. In S. Unger (Ed.). The destruction
           of American Indian families. New York, NY: Association on American Indian Affairs.

                                                          rd
Canby, W.C. (1998) American Indian law in a nutshell (3 ed.). St. Paul, MN: West Publishing
           Company.


Coolidge, D. (1977) ―Kid catching‖ on the Navajo reservation, 1930. In S. Unger (Ed.). The
           destruction of American Indian families. New York, NY: Association on American Indian
           Affairs.


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R13227-0                                             55
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R13227-0                                           56
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R13227-0                                            57
  Tribal-State Relationships: Implications for Child Welfare Service Delivery to American
                             Indian/Alaska Native Children and Families
                                          Sarah L. Hicks, MSW


                                                Abstract


           This chapter examines the role and implications of tribal-state relationships in the child
welfare system and the delivery of child welfare services to American Indian/Alaska Native
children. Policy, funding, and the provision of services are discussed. Promising practices and
successful models of intergovernmental activities and relationships are identified.




R13227-0                                            58
                                                        Introduction


            This chapter will examine the role and implications of tribal-state relationships in the child
welfare system and delivery of child welfare services to American Indian/Alaska Native children.
The first section gives an overview of tribal-state relations, placing these intergovernmental
relationships in context and identifying historical and contemporary issues that affect tribal-state
relations. The second section of this chapter overlays the child welfare arena onto tribal-state
relationships. Policy, funding, and the provision of services are used to contextualize
intergovernmental relationships and to focus on options and resources that protect and serve
American Indian/Alaska Native children and families. The third section examines the status of
American Indian/Alaska Native children with respect to child welfare issues. Against the
backdrop of child welfare policy, funding, service provision, and intergovernmental relationships,
this section points to the disproportionate service needs of American Indian/Alaska Native
children and the under-funding of tribal child welfare systems.
            The fourth section begins by addressing the complexity of tribal-state relations with the
executive, legislative, and judicial branches of government and highlights suggestions for the
development of these relationships in order to provide human services and effectively use scarce
resources. This section also identifies promising practices and successful models of
intergovernmental activities and relationships that lead to increased access to culturally
appropriate services for American Indian/Alaska Native children and families involved in the child
welfare system. Specifically, this section focuses on seamless service delivery, adequate
funding, and family-centered services. The section concludes with a discussion of the need to
engage states and counties in discussions about coordinated service provision and federal
government facilitation of improved tribal-state relationships.


                                                        Background


The Tribal-Federal Government Relationship
            In order to examine tribal-state relationships, it is critical to first understand the
relationship of American Indian and Alaska Native tribal governments to the federal government.
American Indian and Alaska Native tribal governments are acknowledged in the U.S.
                 5                                 6
Constitution and hundreds of treaties, federal laws, and court cases as distinct political entities

5
    U.S. Constitution, Article I, Section 8 recognizes Indian tribes as sovereign governments. It states, ―the Congress shall
have the power to . . . regulate commerce with foreign nations, and among the several states, and with the Indian tribes‖
6
    The U.S. Government adopted the practice of making treaties with Indian tribes from Great Britain‘s custom of
negotiating treaties with its territories. The U.S. Senate ratified 370 treaties with American Indian tribes between 1778
and 1871; at least another 45 were negotiated but never ratified. The term ―treaty rights‖ refers to rights explicitly and
R13227-0                                                   59
with the inherent power to govern themselves (Canby, 1998; Case, 1984; Cohen, 1988). The
treaties and laws have created a fundamental contract between American Indian/Alaska Native
nations and the United States; American Indian/Alaska Native nations ceded millions of acres of
land that enabled the U.S. to expand its territory and become what it is today and, in return,
received the guarantee of self-government on their own lands (National Congress of American
Indians [NCAI], 2003b). The reserved rights of American Indian/Alaska Native tribal governments
are not privileges or special treatment but the result of this federal-tribal contract.
            The essence of tribal sovereignty is tribes‘ ability to make and enforce their own laws and
administer programs to promote the heath, safety, and welfare of tribal citizens within tribal
territory (NCAI, 2003b). Tribal governments provide a broad range of governmental services on
tribal lands, including education, law enforcement, justice systems, human services, and
environmental protection. Tribal governments also provide basic infrastructure such as roads,
bridges, and public buildings (NCAI, 2003b). But tribal authority is not unlimited; the federal
government has significant powers over tribes and can pass legislation that limits the authority of
tribes within the federal system (Canby, 1998; Clinton et al., 2003).
            The federal government also has key responsibilities to tribes. The federal trust
responsibility, one of the most important doctrines in federal Indian law, is the federal
government‘s obligation to protect tribal self-governance, lands, assets, resources, and treaty
rights and to carry out the directions of federal statutes and court cases (Canby, 1998; Deloria,
1985; NCAI, 2003b; O‘Brien, 1989). One component of the federal trust responsibility, as
                                                                                            7
enumerated in many treaties and codified in the Snyder Act of 1921 , is to ensure the ―health,
safety and welfare‖ of American Indian/Alaska Native peoples.
            The 563 federally recognized American Indian/Alaska Native tribes located in 35 states
are extremely diverse. Tribes differ greatly in terms of their regional and individual tribal
                                               8                                        9
experiences with U.S. government, traditions and cultural beliefs, and geography and natural



implicitly held by tribes and not granted to the U.S. government (Utter 2001). During this period the U.S. Government also
adopted the colonial mindset and doctrine of discovery from Great Britain. For more discussion on the impact of
colonialism, see chapter ten of this report.
7
    25 U.S.C. Section 13. The Synder Act was violated and then reaffirmed by the American Indian Policy Review
Commission. See Deloria and Lytle (1984).
8
    The experiences of tribes on the eastern seaboard as opposed to the Midwest, California, or Alaska may vary based on
factors such as whether a tribe was relocated or continues to reside in traditional homeland; the degree of assimilation of
tribal members into mainstream America; their language retention rate; the size of land base; the proportion of tribal
members residing on-reservation, in surrounding areas, and in urban areas; and the number of tribal members.
9
    Differences in traditions and cultural beliefs include, for example, differences between nomadic and more sedentary
lifestyle; in social organization (including gender roles, intergenerational relationships, relationships between community
members); spirituality and religion (including the continued practice of traditional religion, the practice of other religions,
tribal philosophy/ideology, and the separation, or lack thereof, between religion and government); language (descriptive
languages, oral vs. written languages, symbols vs. petroglyphs); and organization of government (branches of
government, methods of dispute resolution, independent judiciary vs. council appointed, council positions and terms of
R13227-0                                                  60
                                10
resource endowments.                 Tribal governments also vary in terms of their intergovernmental
                   11
relationships.
             American Indian/Alaska Native peoples are citizens of the United States,12 citizens of the
state in which they reside, and citizens of their respective tribe(s). This triple citizenship, as well
as the increasing proportion of American Indians/Alaska Natives living off of reservations,13 has
implications for program eligibility and service delivery to American Indians/Alaska Natives and
will be discussed in greater detail later in this chapter.


Historical Problems Between Tribes and States
             Because of the direct federal government to tribal government relationship, historically
tribal-state interaction was limited. The direct tribal relationship with the federal government led


office, election vs. appointment procedures, written vs. oral constitution, and traditional council vs. U.S. federal
government Indian Reorganization Act ―template‖ government).
10
     Differences in geography and natural resource endowments include, for example, differences between rural and more
urbanized locations; the degree of isolation; natural resources (timber, fish, game, etc.); and the degree of development
and types of activities.
11
     Differences in intergovernmental relationships include, for example, differences in relationships with state and local
governments and the degree of administration of tribal programs (i.e., federal vs. state vs. tribally administered schools,
hospitals, law enforcement, and social services). The American Indian Law Center (1981) reports ―relationships [between
tribal and state governments] are as diverse as the responsibilities and activities of these governments themselves.‖ It is
also worth noting that some states, such as Oklahoma, California, and Alaska, have very unique relationships with the
tribes within their boundaries because of particular historical events. The state of Oklahoma was once considered Indian
Territory, and numerous tribes, many of whom were not native to the region, were forcibly removed to Oklahoma.
Although 37 tribes reside within the state boundary, only one reservation, that of the Osage Tribe, has been established.
Other Indian lands in the state of Oklahoma are recognized and held in trust but are not reservation lands per se.
California contains 106 Indian tribes and has a very large urban Indian population (including many Indians from non-
California tribes), partially as a result of federal relocation policies that attempted to remove Indians from reservations into
urban areas to find employment and be assimilated into the mainstream American way of life. The state of Alaska, which
is home to 229 tribes, also has a unique history with tribes. Alaska was not admitted into the union until 1959. Land
claims with tribes were settled in 1971 through the Alaska Native Claims Settlement Act (codified primarily at 43 U.S.C.
§1601 et seq.), which formed 13 regional Alaska Native corporations. The corporation structure (and partnering Native
non-profits) was superimposed over tribal governments in Alaska.
12
     Congress enacted the Indian Citizenship Act in June 1924.
13
     American Indian reservations are plots of land, usually part of traditional Indian homelands, which were reserved for
American Indian tribes when the United States government made a concerted effort toward westward expansion and the
settlement of western lands. American Indian tribal governments generally have civil and some criminal jurisdiction over
reservation lands (except in Pub. L. 280 states). They also provide general governmental services on reservations.
Although the term ―reservation‖ is sometimes used to refer strictly to lands held in trust by the federal government for
American Indian tribes, this paper uses the term to refer more broadly to lands where Indian communities reside and tribal
governments have jurisdiction (whether or not lands are held in trust per se). In this paper, the term ―reservation‖ applies
to reservations in the United States, Native villages in Alaska, rancherias in California, pueblos in New Mexico and tribal
jurisdictional statistical areas in Oklahoma. For more discussion on the establishment of Indian reservations, see Utter
(2001). The 2000 U.S. Census estimated that roughly 60% of American Indian/Alaska Native people live off of
reservation lands.
R13227-0                                                        61
to the sense that there was little role for state governments in tribal affairs. In 1832, in the
                                                   14
Supreme Court decision Worchester v. Georgia,           the court ruled, ―states had no authority to pass
laws that interfered with the federal-tribal relationship. Federal law and inherent tribal
sovereignty, or the tribes‘ status as domestic dependent nations, ruled out any state control over
tribes‖ (O‘Brien, 1989).
         In the limited interactions that tribes and states had, there were frequently conflicts over
jurisdiction and resources. As Earle (2000) notes, ―historically, relationships between states and
tribes have been poorly defined and frequently problematic.‖ These conflicts were often resolved
through protracted legal battles to establish jurisdiction (Hicks & Dossett, 2000; Johnson,
Kaufman, Dossett, & Hicks, 2000).
         These contentious and distant tribal-state relationships have led to hesitancy on the part
of tribes and states to communicate with one another and to coordinate on issues of mutual
interest to these neighboring governments. Some tribal governments have also feared that
forming working relationships with state governments may negatively affect their direct
relationship with the federal government (Johnson et al., 2000).


                               Contemporary Tribal-State Relations
         As Johnson et al. (2000, 2002) note, the trend toward federal devolution—or passing
authority and resources to lower levels of government—has increased in the past decade,
especially in the areas of human service delivery and community development. With increased
responsibilities and resources at more local levels of government, there is a greater need for
intergovernmental coordination and cooperation among local governments, including state,
county, and tribal governments. The mutual interests of neighboring governments are numerous:


         State governments and tribal governments have far more in common than in
         conflict. Both types of government have a primary interest in protecting the
         health and welfare of their people. Both want to promote the economy, provide
         jobs, protect natural resources and the environment, and provide governmental
         services. Both tribes and states have to balance these issues, and their budgets,
         in order to meet the needs and demands of their constituents. The ongoing
         devolution of federal programs to the state and tribal levels also has increased
         the number of common concerns that states and tribes have. (Johnson et al.,
         2000)


         Alternatively called decentralization, a push toward ―states‘ rights,‖ or the empowerment
of local governments, devolution is a movement toward more local, responsive government and is



14
 31 U.S. (6 Pet.) 515 (1832)
R13227-0                                          62
intended to bring ―power to the people.‖ As tribal and state governments gain resources and
responsibilities, their capacity and incentive to cooperate increases.
             Although devolution provides some new governance opportunities and resources to
tribes, these opportunities are often inconsistently offered. Federal devolutionary policies differ in
their treatment of tribal governments (Brown, Scheuler, Whitaker, Clifford, Limb, & Munoz, 2000;
Hicks & Dossett, 2000). Some policies, such as the 1996 welfare reform law (the Personal
Responsibility and Work Opportunity Reconciliation Act (PRWORA), Pub. L. 104-193), offer tribes
the option to administer the Temporary Assistance for Needy Families (TANF) (formerly Aid to
Families with Dependent Children, [AFDC] program. The Personal Responsibility and Work
Opportunity Reconciliation Act also recognized tribes as capable program administrators of
childcare, employment and training, and child support enforcement programs, giving them
                                                                                  15
overlapping or parallel responsibilities with state governments.
             Ironically, within the same piece of legislation, tribal governments were not given the
authority to receive direct federal funding and administer a few related programs, namely the
Food Stamp Program, Medicaid, the Social Services block grant (Title XX), and Title IV-E Foster
Care and Adoption Assistance. The inconsistencies in this policy make it difficult for tribes to
provide the range of programs and services that their tribal citizens may need. By nature of
omission, tribes are prevented by statute from administering some of the fundamental health and
human services needed in their communities (Brown et al., 2000). Moreover, even when tribes
are afforded the same programmatic authorities as state governments, they are generally offered
                                                                                                                         16
fewer resources to provide the same services and are subjected to greater federal oversight.
             The result of inconsistent devolutionary policies is a patchwork of programs and funding
streams that necessitate cooperative intergovernmental relationships in order to serve citizens
effectively and use scarce resources efficiently. To accomplish these tasks, tribal and state
governments can develop working relationships, establish lines of communication, and looking
toward coordinated governance.
             This process is complicated for tribal communities whose lands stretch across state
boundaries. The Navajo Nation Reservation, which falls within the states of Arizona, New
Mexico, and Utah, is a frequently cited example. Other tribes, such as the Standing Rock Sioux
and Sisseton Wahpeton Sioux Tribes of South Dakota (with some citizens across the North

15
     The 1996 law offered tribes the opportunity to administer TANF/AFDC and child support for the first time. Earlier
legislation had already made tribes eligible to administer job training and child care programs. In cases where tribes do
not administer these programs, their respective states are required to serve tribal members, who, as a function of their
U.S. citizenship and of living within the state, are also state citizens and eligible for state-provided services.
16 The welfare reform law allows tribes to administer TANF but only at a funding level between 30 and 50% less of the
total funding that states have (based on the respective state‘s Medicaid matching rate). Although the statute rightly
recognizes the lack of tribal government‘s financial resources and does not require tribes to provide matching dollars
(called ―Maintenance of Effort‖) to their TANF programs, the federal government does not provide this match to tribal
governments nor does it require states to provide the match. See Brown et al. (2001) 11 for a more thorough discussion
of the inequities in the welfare reform law.
R13227-0                                                       63
Dakota border) and the Washoe Tribe of Nevada and California, also face the challenge of
working with multiple state governments.
             An additional complicating factor arises in cases of second-order devolution, or the
further devolution from state governments to local governments, such as counties, boroughs, and
cities. Second-order devolution is consistent with the notion of local governments being best able
to meet the needs of their local citizens, but it can be problematic for tribal communities, whose
boundaries are not co-terminus with county boundaries. In these cases, tribal governments often
face the challenge of working with multiple jurisdictions and bureaucracies to address the
provision of governmental services to their citizens.


Policy, Funding, and Provision of Child Welfare Services: The Role and Impact of Tribal-
State Relationships
             Tribal-state relationships are critical to American Indian/Alaska Native child welfare. They
are important because these relationships affect every facet of services to children. Tribal-state
relationships affect the following:


       1. Identification of child abuse and neglect incidents
                                              17
       2. Investigation of the report
       3. Response to the report (including emergency responses)
       4. Removal process and placement options for American Indian/Alaska Native children
       5. Permanency services available (and degree of accessibility)
       6. Support services available (and degree of accessibility)
       7. Case management and follow-up services
       8. Funding to support services
       9. Coordination of services


             Tribal-state relationships even affect American Indian/Alaska Native children who reside
on their reservations and are under tribal jurisdiction (NICWA testimony before Congress
regarding the Reauthorization of the Indian Child Protection and Family Violence Prevention Act,
2003). The following subsections will examine how federal policies, funding streams, and the
provision of services affect tribal-state relationships and how these relationships affect American
Indian/Alaska Native child welfare.


Pertinent Policies
             A number of key policies address the authorities, jurisdiction, and responsibilities of tribal
                                                                                                        18
and state governments with respect to American Indian/Alaska Native children.                                Any


17
     For an in-depth look at tribal-state relationships in the context of the investigation of the abuse and neglect of American
Indian/Alaska Native children, see Gardner (2000).
R13227-0                                                        64
examination of these policies must begin with an acknowledgement of the federal government‘s
oscillating policies toward American Indian/Alaska Native tribes, on the one hand attempting
forced assimilation of Native people into mainstream America and on the other hand recognizing
and supporting tribal governments and distinct American Indian/Alaska Native cultures (Deloria,
1985; NCAI, 2003b; O‘Brien, 1989). The various federal child welfare policies enacted over the
past century are no exception. At times, these policies have used the mainstream child welfare
system to remove American Indian/Alaska Native children from their homes and place them with
non-Indian families and institutions, and at other times, they have acknowledged sovereign tribal
governments, directing federal resources to the development and capacity-building of tribal child
welfare systems. The remainder of this section provides an overview of general federal Indian
policies, federal child welfare policies, and state child welfare policies.


Federal Indian Policies
            General federal Indian policy has certainly had a dramatic influence on tribal-state
relationships. A few key federal policies, including the General Allotment Act, Public Law 280, the
Indian Self-Determination and Education Assistance Act, and tribal self-governance initiatives,
that have particularly addressed tribal and state responsibilities and jurisdiction are summarized
below.
                                                                                                19
            In 1887, Congress passed the Dawes General Allotment Act.                                Subdividing most
reservations into 160-acre tracts to be distributed to tribal members, the remaining tribal lands
                                                                                    20
were purchased at a minimum price by the U.S. government                                 and resold to White settlers. As
Commissioner of Indian Affairs John Collier noted, the effects of such a policy would be
dramatically assimilationist: ―the allotted Indians of the second generation largely become
landless. By the time the third generation has arrived, substantially all of the allotted Indian land
will have passed into White ownership‖ (Deloria & Lytle, 1984). Nonetheless, public opinion
supported such a policy. An Oregon delegate named Wasson affirmed that the policy was
supposed to be ―the greatest thing that ever happened to Indians‖ because ―it was to remove
them from their present [insular, Indian] environment and place them in the environment of the
civilization of the world so that the children could learn the habits of the white man and learn to be
self-supporting‖ (Deloria & Lytle, 1984). The Allotment Act had longstanding implications for
tribes as ―it all but ended the collective nature of tribal land tenure . . . and opened . . .
reservations to non-Indian settlement‖ (Clinton et al., 2003). The practical result of the federal
policy was to ―checkerboard‖ reservations, interspersing Indian-owned land with non-Indian land
and immensely complicating jurisdiction of states and tribes. Indeed, the Allotment Act


            18
                 See chapter three of this report for a policy timeline that includes these critical pieces of legislation.
19
     24 Stat. 388, codified as amended at 25 U.S.C. §331 et seq
20
     ―Surplus‖ land was bought from Indian tribes at the Allotment Act price of $1.25 per acre. Commissioner John Collier
acknowledged this to be ―outright confiscation‖ (Deloria & Lytle, 1984). For more on the Allotment Act, see Canby (1998).
R13227-0                                                    65
transferred nearly 90 million (of an original 138 million) acres of Indian land to state and federal
jurisdiction (Canby, 1998).
                                        21
             Public Law 83-280,              enacted by Congress in 1953, was legislation that gave some
                                                                                                                22
states certain forms of criminal and civil jurisdiction over American Indian communities                             (Canby,
1988; Clinton et al., 2003; Deloria & Lytle, 1984). Although the legislation specifically addressed
                                  23
tribes in some six states,             it also gave states the ability to alter their state constitutions to extend
                                                                24
some types of state jurisdiction onto reservations                   (Deloria & Lytle, 1984). The justification for
Public Law 280 was the prevailing belief that Indian tribes were incapable of developing and
implementing their own justice systems. Furthermore, extending state jurisdiction over American
Indian communities also served to further broaden publicly held assimilationist goals. As Deloria
& Lytle (1984) note, this legislation affected a great number of tribes. The extension of some
types of state jurisdiction, such as child protection services, on Indian lands dramatically
increased the participation of Indian families in state-administered services, such as public
assistance and child welfare services. Such policy served to ―further erode tribal authority and
capacity to protect children‖ (Cross, Earle, & Simmons, 2000).
             In 1975, Congress passed the Indian Self-Determination and Education Assistance Act
                                       25
(ISDEAA, Pub. L. 93-638),                   which gave tribes the opportunity to contract and receive grants for
services that were formerly provided on Indian lands by the federal government. After the
passage of this statute, the Bureau of Indian Affairs (BIA) Indian Health Service (IHS) began to
assist tribes in building their capacity to administer programs. When tribes so desired, programs
were transitioned from federal to tribal control. Earle (2000) states that this process has greatly
improved the ability of tribes to investigate and treat child abuse and neglect, ―providing tribal
workers, resources, and tribal autonomy over internal matters.‖ As of 1998, over 85% of tribes
had contracted with the BIA to provide social services and welfare assistance (including child
welfare) on their reservations (L. Blair, personal communication, April 1998).
             Building on the success of the self-determination movement, Congress advanced a self-
governance demonstration project in 1991 through Public Law 102- 184, the Tribal Self-



21
     67 Stat. 588, codified in part at 18 U.S.C. §1162 and 28 U.S.C. §1360
22
     Clinton et al. (2003) note that Public Law 280 was ―essentially a halfway measure short of termination.‖
23
     California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation),
and Wisconsin (except the Menominee Reservation) were among the states in which jurisdiction was originally
transferred. Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington later
assumed jurisdiction over some or all of the tribes within their borders; some of these ten states later returned at least part
of their jurisdiction to the federal government. Alaska was added to the list of 280 states when it was admitted to
statehood. See Cohen (1988) for more discussion on Public Law 280.
24
     The Indian Civil Rights Act (ICRA) (Pub. Law 90-284, 82 Stat. 77) codified in part at 25 U.S.C. §1301 et seq, curtailed
the effects of Public Law 280, requiring states that wanted to assume jurisdiction over Indian Country to obtain tribal
consent (Deloria & Lytle, 1984).
25
 88 Stat. 2203, codified at 25 U.S.C. §450a and elsewhere in titles 25, 42, and 50
R13227-0                                                 66
                                                     26
Governance Demonstration Project Act.                     The tribes participating in this demonstration were
given greater authority over the use and prioritization of federal funds. Self-governance tribes
developed compacts (or projects) that they negotiate with the Departments of Interior (DOI) and
Health and Human Services (HHS). The compacts provide financial assistance to tribes to
enable them to assume various programs, functions, services, and activities of the BIA, DOI, and
the IHS. When the self-governance demonstration project was made permanent in 1997, the
legislation (Pub. Law 106-260) also authorized the Secretary of HHS to negotiate with tribes for
                                                                     27
the assumption of other HHS programs beyond IHS.


Federal Child Welfare Policies
             Beyond federal Indian policy, federal child welfare policy also affected tribal-state
relationships in the area of Indian child welfare. As Davidson (1999) and Earle and Cross (2001)
note, the federal government did not recognize state and local government responsibility for child
welfare until 1935, when a small child welfare services program (Title IV-B) was included in the
                           28
Social Security Act.            It was not until the passage of the Child Abuse Prevention and Treatment
Act of 1974 (CAPTA, Pub. L. 93-247) that the federal government enacted legislation that had a
significant impact on child welfare services and child protection (National Clearinghouse on Child
Abuse and Neglect Information, 2003).
             The goal of CAPTA was two-fold: first, to protect children from harm through the
identification, reporting and investigation of child abuse and neglect and second, to publish
materials useful for persons working in the field through the research and compilation of
information on child abuse and neglect. CAPTA made progress toward these goals through state
grants to develop programs to identify and prevent child abuse and neglect; government-funded
research to prevent and treat child abuse; the creation of the NCCANI; and state grants for
personnel training and the funding of innovative programs to prevent and treat child maltreatment.
Because of American Indian/Alaska Native tribes‘ sovereign status and the fact that they did not
receive funding under CAPTA, CAPTA did not apply to American Indian/Alaska Native tribal
governments (Cross et al., 2000; Earle & Cross, 2001).
             The Indian Child Welfare Act (ICWA, Pub. L. 95-608), which was enacted in 1978,
recognized the value of American Indian/Alaska Native children to their tribal communities and
was established to prevent the disproportionate removal of American Indian/Alaska Native
children from their homes. This act established minimum federal requirements for the removal of
American Indian/Alaska Native children; mandated placement preferences for American


26
     For a thorough discussion on the history and philosophy of tribal self-government, see tribalselfgov.org.
27
     The first step in the process was an HHS feasibility study that was conducted to identify and assess non-IHS programs
that tribes were interested in administering. For more on the feasibility study results and tribal discussion of the
assumption of non-IHS programs, see aspe.hhs.gov/SelfGovernance/index.shtml.
28
     Title IV-B provided grants to states for preventative and protective services and foster care payments. The Adoption
Assistance and Child Welfare Act of 1980 later amended this program (Pub. L. 96-272).
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Indian/Alaska Native children that prioritized culturally-appropriate placements; provided
                                                                                  29
resources for tribal social service and child welfare programs;                        created exclusive tribal
jurisdiction over American Indian/Alaska Native children when requested by the tribe, parent(s),
or American Indian/Alaska Native custodian; required state and federal courts to give full faith and
credit to tribal court decrees; and set a higher standard of proof (e.g., ―beyond a reasonable
doubt‖) for the termination of American Indian/Alaska Native parents‘ parental rights (NCCANI,
2003). Although ICWA grants to American Indian/Alaska Native tribes were nominal at best, this
was the first federal acknowledgement of the key role that tribal governments play in protecting
American Indian/Alaska Native children and maintaining American Indian/Alaska Native families.
             In 1988, the Prevention, Adoption, and Family Services Act (Pub. L. 100-294) amended
CAPTA to establish a national data collection system to allow for the analysis of child abuse and
neglect data. All states are required to report data to the system, known as the National Child
Abuse and Neglect Data System (NCCANI, 2003). Again, because tribes did not receive these
grants, they were not required to report data to the system.
             In 1990, Congress passed the Indian Child Protection and Family Violence Prevention
Act (ICPFVPA, Pub. L. 101-630) to address the inapplicability of CAPTA on Indian lands.
ICPFVPA established federal investigation and reporting requirements for American
Indian/Alaska Native communities. Despite provisions in the law, Hinkle (2003) notes, ―no
national registry [for offenders was] established. No database. No toll-free number was ever
connected . . . Tougher background checks were put in place, but . . . years went by before
agency officials . . . applied the new standards.‖ Although it was estimated that $120 million was
required to implement the act, Congress failed to appropriate any funding. In fiscal year 1992,
only $1.5 million was appropriated, barely more than 1% of the amount necessary for
                       30
implementation.             Since then, there has never been an appropriation of more than $1.5 million
annually (K. Funk, personal communication, August 16, 2004). In 1997, only $5 million was
appropriated, which was only 4% of the amount necessary for implementation. Since then, there
has never been an appropriation of more than $5 million annually (Hinkle, 2003). Furthermore,
program regulations focused almost entirely on criminal background checks, ignoring many key
issues for tribes that were developing child abuse and neglect prevention and treatment programs
for the first time.


29
     This provision exemplifies the early stages of implementation of the federal government‘s initiative to support tribal self-
determination and to develop local, culturally appropriate programs, the Indian Self-Determination and Education
Assistance Act of 1975.
30
     This statement, based on Funk‘s August 2004 in-depth examination of ICPFVPA funding, contradicts Hinkle‘s (2003)
earlier statement on ICPFVPA funding. Funk‘s analysis tracked funding authorized under the ICPFVPA, beginning in
fiscal year 1992, the first year of authorized appropriations. She noted that between fiscal year 1992 and fiscal year 1996,
Congress never appropriated more than $1.5 million in ICPFVPA. Moreover, in fiscal year 1996, ICPFVPA funding was
combined with BIA Social Services, making it impossible to specifically identify ICPFVPA funding. Even after combining
the two line items, appropriations never even approached $2 million (K. Funk, personal communication, August 16, 2004).
R13227-0                                                  68
            In 1997, in response to growing pressure from the public to address the needs of children
lingering in foster care awaiting permanent placements, Congress enacted the Adoption and Safe
Families Act (ASFA, Pub. L. 105-89). ASFA was intended to promote permanency for children in
foster care, ensure safety for abused and neglected children, accelerate permanent placements
of children (setting new timeframes for terminating parental rights and promoting adoptions), and
increase accountability of the child welfare system (through the establishment of new state
outcome measures) (NCCANI, 2003). Although there is some confusion about the intersection of
ICWA (which prioritizes keeping Indian children in Indian homes) and ASFA (which prioritizes
quick, permanent placements for children removed from their homes, specifically ignoring the
race and ethnicity of the children), ICWA is the precedent that guides the application of child
welfare policy to American Indian/Alaska Native children.
            Indeed, as this policy review has shown, ―tribal governments have not always had the
opportunity to be involved in protecting their children despite having sovereign authority. The
exercising of their authority has been their greatest challenge, with resources and authority being
given over to other governmental entities, such as the states or the Bureau of Indian Affairs‖
(Reauthorization of ICPFVPA, 2003). Moreover, ―since most Indian tribes/nations do not have
formal relationships with the states where they are located, both states and tribes have been
reluctant to pursue state mandates regarding . . . [child abuse and neglect] . . . on Indian lands‖
(Earle, 2000). Thus, the needs of American Indian/Alaska Native children have often gone unmet
while authorities and resources needed by tribal child welfare systems to adequately protect and
treat American Indian/Alaska Native children have been overlooked by federal policy.


State Child Welfare Policies
            Several states, such as California, Iowa, Minnesota, Oklahoma, Oregon, and
Washington, have their own Indian child welfare laws. In these states in particular, the tribes and
state have come together to develop legislation that specifically addresses the implementation of
ICWA in that state. In fact, there are references to ICWA and its requirements in at least a dozen
states‘ laws, regulations, and/or policies and procedures manuals (D. Simmons, personal
communication, April 2004). State legislation and regulations vary from isolated references to
ICWA to comprehensive iterations of the federal law with additional protections for Indian
children. In spite of the federal ICWA, state policies are important because they serve to increase
awareness and likelihood of implementation of ICWA in the executive and judicial branches as
                                                                                                            31
well as to clarify implementation issues and address unique issues in certain localities.                        State
laws regarding the implementation of ASFA can also affect Indian child welfare practices within
the states.




31
     The Oklahoma and Washington state ICWA laws clarify respective state and tribal roles and responsibilities. They also
add protections for Indian children, ensuring that tribes receive notice of voluntary proceedings.
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            These types of state laws are important for a number of reasons. First, the development
of such legislation has been an opportunity for tribes and the state to dialogue about Indian
children, the services they need, and the placements that they require. This has often served to
be an educational process for state legislators. Second, such laws give more specific direction as
to the local implementation of ICWA, in particular laying out how the state will comply with the
requirements (i.e., to notify the tribes when an Indian child is removed, to seek an appropriate
placement under the placement preferences enumerated in the federal statute, and to transfer
cases to the tribal court when required to do so). Third, state Indian child welfare laws send a
message; they signal to the state that Indian children are important and require unique
protections. Legislation, which applies beyond any particular executive branch administration, is
an enduring policy statement about the state‘s commitment to Indian children—the future of
American Indian tribes.


Funding and Provision of Services
            Cross et al. (2000) noted that almost all of the 563 federally recognized American
Indian/Alaska Native tribes in the United States administer, either individually or through
participation in a consortium with other tribes, some form of child welfare services. Nonetheless,
states still play a large role in the delivery of child welfare services to American Indian/Alaska
                                     32
Native children and families : ―Inadequate funding levels, the failure of legislation and policy to
fully address the rights and abilities of tribes to participate in federal domestic assistance
programs, and ambiguous relationships between tribes and states have hampered tribes‘ abilities
to fully implement needed services for children and families‖ (Brown et al., 2000).
            The largest sources of state child welfare funds are federal grants under Title IV-B
(prevention and case management funds) and Title IV-E (foster care and adoption) of the Social
Security Act (Geen, Waters, & Tumlin, 1999). While O‘Neill Murray (n.d.) estimates that these
two sources directed $6 billion (53% of all federal funding that states use for child welfare) to
states in fiscal year 2003, final fiscal year 2003 budget data show expenditures of $6.6 billion in
Title IV-E alone and almost $700 million in Title IV-B Subparts 1 and 2 (U.S. Department of
Health and Human Services [USDHHS], 2004). Many states also use a large portion of non-
dedicated funding sources, like Title XX Social Services block grant (17% of funding), TANF (15%
of funding), and Medicaid (over $780 million, excluding routine health care), for child welfare
(Geen et al., 1999; O‘Neill Murray, n.d.).
            Tribal access to many of these funding streams is extremely limited. Tribes may
                                                                                                                  33
administer TANF, although with fewer resources and greater federal oversight than states.

32
     A study by Earle (2000) showed that state or county child protection agencies are involved in 61% of child abuse and
neglect investigations on Indian lands. For a more detailed analysis of tribal-state-federal coordination on child abuse and
neglect investigations, see Gardner (2000).
33
     As of January 2004, 41 tribal TANF programs, serving 186 tribes in 15 states, were in operation. Federal TANF block
grants to tribes totaled $127.5 million. See footnote 13 on page 5.
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Tribes can work through states to receive Medicaid reimbursements, which primarily reimburse
                                                   34
tribal and IHS facilities for health care.              Tribes do not have the same ability as states to use
Medicaid for child welfare purposes; generally, only strict health care costs expended in health
facilities for children in the child welfare system are collected.
             Although tribal populations (on and off reservation) are used in funding formulas to
calculate grant amounts for Titles IV-E or XX funds, tribes are not eligible to receive them directly;
                                                                                                                         35
they must develop state-tribal agreements in order to receive some proportion of these funds.
As of June 2001, only 75 Title IV-E agreements in 14 states were in place (G. Limb, personal
communication, April 2004). Currently, only the 21 tribes in the state of Arizona are known to
receive Title XX funds as a pass-through from the state (K. Dyjak, personal communication,
March 2004). Both the states of Idaho and Oregon have formerly shared Title XX funds with
tribes (D. Simmons, personal communication, March 2004).
             Tribes do have access to Subparts 1 and 2 of Title IV-B. However, after allocating the
small stream of monies to so many tribes, tribes receive only minimal grants. In fiscal year 2003,
tribes received almost $5.4 million in IV-B, Subpart 1 funding and just over $5 million in Subpart 2
funds (USDHHS, 2004). While the authorizing statute for Subpart 1 does not specify a
percentage or amount of funding for tribes, tribes do receive 1% of the discretionary part of
Subpart 2 and 2% of the mandatory portion of Subpart 2 by statute. Under Subpart 2, tribes
receive funding by formula if they generate a minimum of $10,000 under the formula (K. Funk,
personal communication, March 2004).
             The largest sources of tribal child welfare funds are the aforementioned Title IV-B grants
and other federal grants under ICWA and BIA‘s Welfare Assistance and Social Services program.
                                                                                  36
In fiscal year2003, tribes received $17 million in ICWA grants.                        Of the $87 million for tribal
welfare assistance programs and services in fiscal year 2003, about 33%, or $30 million, went to
an array of child welfare services (U.S. Department of the Interior [DOI], 2004). Combined, the
Title IV-B, ICWA, and Welfare Assistance grants provided $57.4 million to Indian tribes in fiscal
                37
year 2003.           Clearly, there is a huge disparity in federal funding to support state (over $7 billion
in fiscal year 2003) and tribal ($57 million in fiscal year 2003) child welfare systems. Moreover,
while the federal funds that states receive are stable, entitlement programs (Title IV-E [open-
ended entitlement], Title IV-B [capped entitlement], and Title XX [capped entitlement], the federal
child welfare funds that tribes receive from the BIA ($47 million of their $57.4 million in federal


34
     In fiscal year 2003, tribal and IHS health facilities collected $423 million in Medicaid reimbursements.
35
     As Brown et al. (2000) stated, ―Since 1994, approximately 40 federal programs have been authorized to support child
welfare services. The largest of these programs, which includes family support, foster care, and adoption assistance, is
authorized under Titles IV-B and IV-E of the Social Security Act.‖ Tribes are not eligible to receive Title IV-E funds, the
largest source of child welfare funding in state child welfare systems, except through tribal-state agreements.
36
     Federal ICWA funding peaked in 1994 at about $23 million, including not only tribal ICWA grants but also competitive
urban ICWA grants (D. Simmons, personal communication, April 2004).
37
 No estimate of the amount that tribes receive through Title IV-E agreements or through Title XX is available.
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funds) are discretionary monies. Indeed, because of the minimal funding that tribes receive from
BIA welfare assistance and social services programs, ICWA grants, and some limited Title XX
and Title IV-B funding, tribal-state relationships are critical to making fundamental resources
accessible to American Indian/Alaska Native children and families.
             Perhaps Brown et al. (2000) summarizes the impact of this patchwork of policies on tribal
governments and their service delivery system best: ―In sum, federal policies have not fully
recognized the self-determination and rights of tribal governments to participate in federal
domestic assistance programs. The failure to recognize tribal governments as ―real‖
governments has led to tribal dependence on state governments in order to participate in a
number of federal programs.‖
             Even though these tribal-state arrangements provide critical resources to sustain tribal
child welfare programs and provide desperately needed services, it is completely inappropriate,
given the federal government-to-tribal government relationship, to expect tribal governments to
negotiate with their respective states for a share of child welfare funds. Moreover, in this
scenario, funding for programs for the most vulnerable citizens in Indian Country, children at risk
of abuse and neglect, is completely dependent on a state‘s willingness to pass along federal
dollars to tribal governments. Children‘s lives are held in the balance, weighed against state
budget conditions; the understanding and sympathy (or lack thereof) of state legislators and
executive branch employees; other issues that affect tribal-state relationships yet have nothing to
do with Indian children (i.e., contentious gaming compact negotiations or court cases involving
                                              38
treaty hunting and fishing rights);                and their tribes‘ ability to negotiate on their behalf. The only
way to ensure that Indian children receive the services they need is to direct federal funding to
tribal governments for the development of local, culturally appropriate child welfare systems.


The Status of American Indian/Alaska Native Children
             Given the backdrop of the fractionated service delivery systems providing child welfare
services to American Indian/Alaska Native children, we should examine the effect of these
policies and the resulting tribal-state relationships on American Indian/Alaska Native children.
             Annie E. Casey‘s KIDS COUNT Data Book (2003), compiled using 2000 U.S. Census
data, also present indicators of American Indian children‘s status and needs. In comparing
                                   39
American Indian families                to non-Hispanic, White families, U.S. Census data shows that


38
     It is frequently noted that one of the major problems with tribal-state relationships is the lack of ―issue separation‖
(Johnson et al. 2002, 2000). Tribal-state relationships are colored by all of the various areas in which states and tribes
interact. It is frequently the case that even in areas where both the state and tribe agree that an issue of mutual interest
(like the provision of child welfare services to Indian families) is not controversial, other unrelated, contentious issues
about jurisdiction may make state-tribal agreements impossible to negotiate. For more on this, see U.S. Department of
Health and Human Services, Office of Inspector General (1994).
39
     The U.S. Census data cited here uses the ―American Indian/Alaska Native alone or in combination‖ racial category.
The use of this category yields a conservative comparison, as the ―American Indian/Alaska Native alone‖ category shows
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American Indian households are more likely to have children (45.1% vs. 31.6%) and that fewer
American Indian children live in two-parent families (52.3% vs. 75.2%) (Annie E. Casey
Foundation [AEC], 2003). Indian children disproportionately live in single-parent families (31.1%
vs. 17.7%), with neither parent (9.5% vs. 3.7%), or in a household where a grandparent is the
head of household (10.1 vs. 4.2) (AEC, 2003). In comparison with non-Hispanic White families,
American Indian families have a lower median income ($36,120 vs. $54,698), experience higher
poverty rates (27.1% vs. 9.3%), and are more likely to have children under the age of 15 with a
disability (9.0% vs. 5.7%) (AEC, 2003). Further, American Indian children are more likely to live
in families where no parent is in the labor force (16.1% vs. 5.5%) (AEC, 2003).
             Finally, in examining indicators of concentrated effects of poverty, female-headed
households, high school drop-outs, and unemployed working age men, U.S. Census data show
that 6.7% of American Indian children live in neighborhoods where all four of these factors are
above 150% of the median rate (AEC, 2003). In sharp comparison, only 0.7% of non-Hispanic
White children live in neighborhoods where poverty, female-headed households, high school
drop-outs and unemployed working age men were present above 150% of the median rate in all
communities (AEC, 2003).
             Earle and Cross (2001) comprehensively reviewed and compared child abuse and
                                                                                                                  40
neglect data for American Indian/Alaska Native children reported by five national studies                              and
aggregate data from the western region (Arizona, Nevada, and Utah) of the BIA. Findings that
Earle and Cross (2001) reported as consistent across these studies include an increase in overall
child abuse and neglect among American Indian/Alaska Native children (in contrast to the
declining rate found among all other racial/ethnic groups except for Asians); disproportionate
                                                                                                 41
rates of abuse and neglect among American Indian/Alaska Native children;                              greater violence
among American Indian/Alaska Native families; higher rates of co-occurrence of alcohol abuse
and child abuse and/or neglect among American Indian/Alaska Native families; and higher rates
of foster care placement of American Indian/Alaska Native children.
             Other key findings identified by Earle and Cross (2001) include higher rates of public
assistance receipt among non-Hispanic American Indian/Alaska Natives than among non-
Hispanic White families; lower likelihood of child sexual and physical abuse among non-Hispanic


more severe indicators of economic deprivation and need. See Annie E. Casey (2003) for an explanation of the various
categories and for different comparisons.
40
     Studies reviewed for the report include the following: National Indian Justice Center (1991); University of Minnesota
Adolescent Health Program (1992); Child Welfare League of America (CWLA) (1999); U.S. Department of Health and
Human Services, Administration for Children and Families (HHS) (2001); and U.S. Department of Justice (1999).
41
     Although American Indian/Alaska Native children are only 1% of the U.S. population, they represent 1.6% of
substantiated or indicated child abuse and neglect cases (CWLA, 1999). American Indian/Alaska Native children also
experience a higher victimization rate than White children. American Indian/Alaska Native children are victimized at a rate
of 20.1 per 1,000 children of the same race as opposed to 10.6 per 1,000 children for Whites (HHS, 2001). For a variety
of reasons discussed by Fox (in this volume), there are still many questions about the validity of child abuse and neglect
data in Indian Country. For more discussion on this topic, see chapter five of this report.
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American Indian/Alaska Natives than Whites; and lower rates of adoption of American
Indian/Alaska Native children in comparison to White children. The authors also found that, when
considering data from various sources for the same time frame, there were large differences in
reported child abuse and neglect data for the same states (Earle & Cross, 2001).
             Many of the authors‘ findings are supported by the limited research available on the
subject of the abuse and neglect of American Indian/Alaska Native children (Earle & Cross,
2001). Clearly, Indian children have a disproportionate need for child welfare services, which is
now haphazardly addressed through fragmented service delivery systems.


Mechanisms and Models of Intergovernmental Relationships to Facilitate Improved Child
Welfare Services to American Indian/Alaska Native Children


Relationships with All Three Branches of State Government
             Before identifying some specific models to improve tribal-state relationships, it is useful to
examine the role of each of the three branches of state government and to explore over-arching
efforts to facilitate intergovernmental relationships with each branch.
             The legislative branch, which makes laws and appropriates government funding, is
clearly a critical component in tribal-state relationships. Tribes and states can develop and
institutionalize legislative relationships through the establishment of committees of jurisdiction
over American Indian/Alaska Native issues; hiring legislative staff (at the individual representative
level and/or at the committee level); developing state legislation that affirms a government-to-
government relationship with tribes; providing new legislator training about the governmental
status, structure, and function of tribes; sponsoring briefings and/or hearings about issues of
interest to tribes; and requiring ―tribal impact statements‖ on any bills that are introduced
                                                                42
(Johnson, Kaufmann, Dossett, & Hicks, 2002).
             The executive branch, which implements and enforces the laws that the legislative
branch makes, is the branch of state government with whom tribes have generally had the most
                                                43
experience (Johnson et al., 2000).                   Executive orders that establish government-to-government
relationships with state agencies; development and implementation of state consultation policies;
establishment of Governors‘ Offices of American Indian/Alaska Native Affairs; training for state
agency employees that address the governmental status, structure, and function of tribes; and
quarterly meetings of state/tribal administrative staff are mechanisms through which tribes and
                                                                                        44
states can develop good working executive branch relationships.


42
     For further detail on these mechanisms and examples of states and tribes that have implemented these models, see
chapter 4 of Johnson et al. (2002).
43
     It is hypothesized that this executive branch dominated relationship in tribal-state relations mirrors historical tribal
relationships with the federal government‘s executive branch.
44
     For further detail on these mechanisms and examples of states and tribes that have implemented these models, see
chapter 4 of Johnson et al. (2002).
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             Finally, the judicial branch, which interprets the laws made by the legislature, can use
court rules; training for new judges on the governmental status, structure, and function of tribes;
and issue-specific training about key matters of tribal governance (such as the application and
implementation of the federal ICWA, Pub. L. 95-608) as vehicles to improve tribal-state
relationships.
             Regardless of the branches of government with which the tribal-state relationships are
being developed, a few key principles of intergovernmental relationships apply: a commitment to
cooperation in areas that tribes and states can come together on (acknowledging that there will
be some issues on which tribes and states do not agree but not letting the areas of disagreement
affect areas in which there could be some cooperative effort); mutual understanding and respect;
regular and early communication (before policies are developed and conflicts arise); a process
and accountability for addressing issues; and institutionalizing positive relationships (Johnson et
               45
al., 2002).


Specific Mechanisms and Models
             Because of the substantial impact that tribal-state relationships have on American
Indian/Alaska Native children, tribes and states have identified a variety of mechanisms and
models to improve this intergovernmental relationship and to provide more accessible, culturally
relevant, and/or more effective services to American Indian/Alaska Native children and families.
The models that are described below make progress toward providing seamless, family-centered
services that offer adequate supports for American Indian/Alaska Native children and families.
             Before tribes can engage states in dialogue about cooperative relationships, tribes must
coordinate their child welfare resources internally. This means that first, child welfare programs,
program staff, and various funding streams must be coordinated. Second, related tribal agencies
must also be coordinated with tribal child welfare programs. There must be good working
relationships between child welfare and law enforcement, tribal courts, education, and social
                           46
services programs.
             After tribal programs are internally coordinated, tribes and states/counties can begin a
                                           47
productive working relationship.                Earle‘s (2000) study reported that both tribal and state child
welfare workers cited that the most common suggestion for improvement of tribal child abuse and
neglect identification, reporting, and treatment was improved communication and coordination of


45
     Chapter 2 of Johnson et al. (2002) elaborates on each of these guiding principles. The Sacred Child Project, sponsored
by the United Tribes Technical College (UTTC) in Bismarck, ND, developed a similar set of principles. See Schmid
(2000) for a discussion of the UTTC principles.
46
     For more on this topic, see Chapter 12 of this report.
47
     The Commission on State-Tribal Relations, sponsored by the American Indian Law Center, stated that a ―necessary
precondition of to bringing about an improved state-tribal relationship is that each government have a sound and realistic
understanding of its own goals—both stated and unstated—and its own performance, including its shortcomings‖
(American Indian Law Center, 1985).
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                                                                      48
[tribal and state] agencies involved in child protection.                  States/counties and tribes can engage in
discussions about key issues, such as protocols around the investigation of child abuse and
neglect reports, the implementation of ICWA, the identification of appropriate out-of-home
placement options for American Indian/Alaska Native children, and the development of child
protection teams. Although working with counties (especially multiple counties) exponentially
complicates these issues for tribes, it is important that local relationships that have the potential to
really change the way that services are provided to American Indian/Alaska Native children are
formed. In some cases, such as in the State of California, tribal governments have approached
the state to assist in facilitating a working relationship with counties.
             Intergovernmental relationships are not easy to negotiate. They require a serious
commitment of time and resources to understand each other‘s governmental structure and way of
doing business, develop a rapport with key players, establish channels for on-going
communication, educate one another about the respective perspectives on key issues, negotiate
respective governmental responsibilities, and develop cooperative strategies for joint solutions to
intergovernmental problems. The federal government can play a supportive role in these
relationships. It can explicitly condone tribal-state relationships and provide resources to support
cooperative governance. The federal government can also clarify opportunities for
intergovernmental relationships and service delivery agreements, allowing for states to contract
with tribes on a government-to-government basis where appropriate.
             In some cases, historical antagonism has largely prevented positive tribal-state
relationships from forming. The federal government can encourage such states to come to the
table and provide opportunities for joint dialogue. One such example is the opportunity that the
federal government has to encourage states to involve tribal communities in planning and
implementing the Child and Family Service Reviews (CFSR) required under Title IV-B. Congress
included CFSR of Title IV-B programs to hold states accountable for providing adequate services.
One component of the CFSR includes a review and assessment of the states‘ descriptions of
their implementation of ICWA and the delivery of services to Indian families. CFSRs, which are
overseen by the U.S. Department of Health and Human Services Children‘s Bureau, present an
                                                                                       49
opportunity for the federal government to monitor ICWA compliance                           and provide technical
assistance to states to: provide information about contacting tribal governments; invite tribal input;
discuss appropriate services and implementation strategies; and highlight evaluation
mechanisms.
             Many other models of tribal-state coordination also exist. Through intergovernmental
agreements or administrative decisions, some states have opted to out-station state workers on
Indian land, making it easier for tribal citizens to access services. Other states and tribes have

48
     Forty-three percent of state workers and 25% of tribal workers cited this suggestion (Earle, 2000). An additional 7% of
tribal workers cited a state agreement as a recommendation for improving tribal child protection systems.
49
     The Indian Child Welfare Act does not include an enforcement provision. Hence, ICWA compliance has largely been
left to the judicial branch. CFSRs provide an avenue for executive branch monitoring of ICWA.
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undertaken joint training on programmatic, practice, and information systems issues. For
example, tribal and state juvenile court judges advisory committees or forums may convene
regularly for education, training, and addressing issues related to child custody proceedings
involving American Indian/Alaska Native children and families. Some states provide opportunities
for tribal consultation on state legislation, regulations, and program plans (including IV-B plans).
Some states have designated tribal liaisons in child welfare and/or have created agencies within
the state that specifically address tribal-state human services issues. In some states, tribal-state
advisory committees provide a regularly scheduled forum for discussion and the development of
solutions to critical issues in serving American Indian/Alaska Native children on and off the
reservation. Finally, some states sub-contract with tribes and pass through federal (and state
dollars) for tribal administration of programs that tribes are not statutorily eligible to directly
administer or for programs where tribes would like to administer some (e.g., case management),
but not all, components (e.g. general administration, eligibility determination, and federal
                                              50
reporting) of a particular program.
             Over the years, tribal-state agreements have been developed to address a variety of
programs and many programmatic subcomponents. These agreements range from coordination
and referral agreements to subcontracts for services. Tribal-state agreements are diverse in their
structure and specific provisions (Brown et al., 2000; Goodluck, 1997). Some agreements, like
those in Minnesota and Washington, give tribes great flexibility in designing programs and
services, while other agreements are very prescriptive, basically allowing for the tribe to
administer all or a piece of a state‘s program to their tribal citizens. Another concern raised in
studies on intergovernmental agreements is whether or not tribes that contract to administer state
programs receive the full range of funding that states receive to operate the same program. For
example, a study of Title IV-E tribal-state agreements found that most agreements provided for
the maintenance payments to foster and adoptive families but did not pass through administrative
                                                                                                 51
dollars or funding for staff and foster parent training (Brown et al., 2000).
             There are significant positive outcomes of tribal-state agreements: an increased ability for
states and tribes to provide culturally-relevant services, an increased ability for tribes to


50
     Whatever the mechanism, the bottom line is that the state has an obligation to provide services it makes available to its
citizens also to its American Indian/Alaska Native citizens. In many cases, the most effective means to deliver services to
Indian citizens of a state is to contract with the tribe to provide the services. In a case in federal court in New Mexico,
Navajo Nation v. New Mexico (1992), the federal court held that it violated equal protection and discriminated against
American Indians when the State of New Mexico, in the middle of a budget crisis, decided to address a shortage of Title
XX services by eliminating Title XX services (provided under contract by the Navajo Nation) to Navajo Indians who
resided on the reservation. The contract, which had been terminated by the state, was reinstated and funding restored.
51
     Brown et al. (2000) cite key factors of tribal-state agreements as follows: (a) being a reflection of the interests and
practices of both the state and tribe (Schmid, 2000); (b) including a common value framework (Kunesh, 1993); (c) being
based on respect for the needs of Indian children, families, and tribes (Kunesh, 1993); and (d) respecting the
government‘s joint roles and responsibilities in handling child welfare proceedings (Kunesh, 1993). See Brown et al.
(2000) pp. 25-29 and 71 for an extensive discussion of the components of ICWA and Title IV-E state-tribal agreements.
R13227-0                                                   77
                                                                                           52
administer their own programs and provide services to their citizens,                           and an opportunity for
tribes to exercise their sovereignty (Brown et al., 2000). In addition, tribal-state agreements have
the effect of introducing key contacts within tribal and state governmental systems to one another
and providing a vehicle for an on-going working relationship through the implementation of the
agreements.
             Finally, many of these mechanisms and models of tribal-state relationships, especially
intergovernmental agreements, allow for the monitoring and evaluation of service provision and
the intergovernmental relationship (Brown et al., 2000; Goodluck, 1997).


Conclusion
             Although the notion of tribal-state relationships may seem to preclude the federal
government, as this chapter has already pointed out, there is, in fact, a substantial role for the
federal government in facilitating positive, mutually beneficial tribal-state relationships. In a
                                                                     53
recently developed Tribal Leader Policy Statement,                        elected tribal leaders from throughout Indian
Country relayed the following message:


             As the federal government continues to devolve authority and divest resources in
             state, local and tribal governments, it should be clear that this course of action
             does not in any way diminish the federal trust responsibility that exists between
             the federal government and American Indian and Alaska Native governments . . .
             [A]s this trend continues, to mitigate any detriment to tribes, the federal
             government is obligated to maintain its federal trust responsibility. We call upon
             the federal government to take a stronger role in facilitating positive, mutually
             beneficial tribal-state relationships.


             State child welfare workers in Earle‘s (2000) study echoed these remarks, commenting
on the child welfare system‘s need for ―consistency, a clear understanding of what‘s available
from the feds. The state could be a party at the table, with more open communication around
money issues, what‘s available and what the issues are.‖ Another state child welfare worker
stated, ―Jurisdictional issues require more guidance from the federal government on how funding
is divided. The state should not be in a position to decide, as the relationship can get ugly with
the tribes‖ (Earle, 2000).


52
     In the state of Utah, a unique tribal-state agreement allows for tribal-state discussion about how to allocate the costs of
social services when American Indian/Alaska Native children are transferred to tribal jurisdiction. For Title IV-E eligible
children, the state will continue to pay for social services for American Indian/Alaska Native children whose cases are
transferred to tribal court.
53
     At the first-ever HHS Administration for Children and Families National Tribal Consultation Session held in Phoenix, AZ
on December 2, 2003, tribal leaders in attendance drafted a ―Tribal Leader Policy Statement‖ that was forwarded to HHS
Secretary Tommy Thompson (NCAI, 2003a).
R13227-0                                                        78
             Poor tribal-state relationships can negatively affect the prevention and treatment of child
abuse and neglect on Indian lands. Hostile or indifferent intergovernmental relationships can
result in fragmented and uncoordinated service delivery with the potential for minimal oversight.
Case management may not be available or may not adequately identify and/or make accessible
needed support services, including critical treatment for the victims of child abuse and neglect.
When tribes and states are unwilling or unable to develop cooperative relationships, it is children
and families who suffer the most.
             While some authors note that tension between tribes and states may always be present
(Utter, 2001), it is clear that the federal government can mitigate at least some portion of this
strain. The federal government has a role in facilitating improved relationships. This role may
include such steps as follow:


       1. Supporting tribal institutional and human services infrastructure development, and
             assisting tribal governments to increase their program administration capacity and their
             capacity to coordinate and partner with state governments
       2. Encouraging states to dialogue with tribal governments
       3. Facilitating initial tribal-state discussions (when asked)
       4. Sponsoring dialogue with tribes and states to identify key jurisdictional issues that need
             to be discussed, explored, and resolved
       5. Providing technical assistance to state and tribal governments on developing varied
             mechanisms and models to institutionalize government-to-government tribal-state
             relationships
                                                                               54
       6. Enforcing state compliance with ICWA and Title IV-B
       7. Funding projects that identify and publicize promising practices in tribal-state
             relationships that coordinate and improve child welfare service delivery
       8. Making a serious commitment to improve the systems of care that serve our most
             vulnerable citizens, abused and neglected children, through providing substantial funding
             to the Indian Child Protection and Family Violence Prevention Act
       9. Amending federal statutes to make tribes eligible for mainstream child welfare funding
             sources (e.g., Titles IV-E and XX of the Social Security Act)
       10. Funding research that results in better collection of child abuse and neglect data for
             American Indian/Alaska Native children and full incorporation of this data into national
             databases
       11. Funding research that assists tribal communities in identifying culturally appropriate
             performance measures for child welfare programs serving American Indian/Alaska Native
             children


54
     Although the executive branch can enforce the Title IV-B requirements, it is up to the judiciary to enforce ICWA
compliance, because the executive branch has no responsibility or authority to do so under existing law.
R13227-0                                                79
    12. Establishing monitoring and accountability mechanisms that ensure adequate state
           provision of child welfare services to American Indian/Alaska Native communities




                                           REFERENCES



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American Indian Law Center. (1981). Handbook on state-tribal relations. Albuquerque, NM:
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American Indian Law Center. (1985). Working on developing tribal-state agreements on child
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Annie E. Casey Foundation. (2003). KIDS COUNT pocket guide: American Indian children.
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Brown, E.F., Scheuler Whitaker, L., Clifford, C.A., Limb, G.E., & Munoz, R. (2000). Tribal/state
           Title IV-E intergovernmental agreements: Facilitating tribal access to federal resources.
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                                                               rd
Canby, W.C. (1998). American Indian law in a nutshell (3 ed.) St. Paul, MN: West Publishing
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Case, D.S. (1984). Alaska Natives and American laws. Fairbanks, AK: University of Alaska Press.


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Clinton, R.N., Goldberg, C.E., & Tsosie, R. (2003). American Indian law: Native Nations and the
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Cohen, F.S. (1988). Handbook of federal Indian law with reference tables and index.
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Cross, T.L., Earle, K.A., & Simmons, D. (2000). Child abuse and neglect in Indian Country: Policy
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Davidson, H. (1999). Child protection policy and practice at century‘s end. Family Law Quarterly,
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                                                          th
Deloria, V. Jr. (1985). American Indian policy in the 20 century. Norman, OK: University of
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Deloria, V. Jr. & Lytle, C.M. (1984). The nations within. Austin, TX: University of Texas Press.



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Earle, K.A. (2000). Child abuse and neglect: An examination of American Indian data. Seattle,
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Earle K.A. & Cross, A. (2001). Child abuse and neglect among AI/AN Children: An analysis of
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Fischler, R.S. (1985). Child abuse and neglect in American Indian communities. Child Abuse and
           Neglect, 9(1), 95-106.


Gardner, J. (2000). Improving the relationship between Indian Nations, the federal government,
           and state governments: Developing and implementing cooperative agreements or
           memorandums of understanding. Oklahoma City, OK: Center on Child Abuse and
           Neglect, University of Oklahoma Health Sciences Center.


Geen, R., Waters Boots, S. & Tumlin, K.C. (1999). The cost of protecting vulnerable children:
           Understanding federal, state and local child welfare spending (Occasional Paper Number
           20). Washington, DC: Urban Institute.


Goodluck, C. (1997). Tribal-state child welfare project. Final report. Prepared for the National
           Center on Child Abuse and Neglect. Englewood, CO: American Human Association.


Hicks, S. & Dossett, J. (2000). Principled devolution. Washington, DC: Working paper, National
           Congress of American Indians.


Hinkle, J. (2003). A law‘s hidden failure. American Indian Report, 19(1), 12-14.


Johnson, S., Kaufmann, J., Dossett, J., & Hicks, S. (2000). Government to government:
           Understanding state and tribal governments. Denver, CO: National Conference of State
           Legislatures.


Johnson, S., Kaufmann, J., Dossett, J., & Hicks, S. (2002). Government-to-government: Models
           of cooperation between states and tribes. Denver, CO: National Conference of State
           Legislatures.


Kunesh, P. (1993). Building strong, stable Indian families through the Indian Child Welfare Act.
           Indian Law Support Center Report, 16(12) 1-7.




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National Clearinghouse on Child Abuse and Neglect Information. (2003). Major federal legislation
           concerned with child protection, child welfare, and adoption. Washington, DC: National
           Clearinghouse on Child Abuse and Neglect.


National Congress of American Indians. (2003a). HHS ACF national tribal consultation session:
           Tribal leader policy statement. Unpublished manuscript.


National Congress of American Indians. (2003b). An introduction to Indian Nations in the United
                     rd
           States. (3 ed. Expanded.). Washington, DC: National Congress of American Indians.


National Indian Justice Center. (1991). National Indian Justice Center phase III final report: Child
           abuse and neglect in American Indian and Alaska Native communities and the role of the
           Indian Health Service. Petaluma, CA: National Indian Justice Center.


O‘Brien, S. (1989). American Indian tribal governments. Norman, OK: University of Oklahoma
           Press.


O‘Neill Murray, K. (n.d.) The child welfare financing structure. Washington, DC: Pew Commission
           on Children in Foster Care.

                                                                        nd
Prucha, F.P. (1990). Documents of the United States Indian policy. (2        ed. Expanded). Lincoln,
           NE: University of Nebraska Press.


Reauthorization of the Indian Child Protection and Family Violence Prevention Act (S. 1601):
                                                                       th
           Hearings before the Senate Committee on Indian Affairs, 108 Cong. (2003) (testimony
           of G. Brunoe).


Reauthorization of the Indian Child Protection and Family Violence Prevention Act (S. 1601):
                                                                       th
           Hearings before the Senate Committee on Indian Affairs, 108 Cong. (2003) (testimony
           of T.L. Cross).


Reed, J.B. and Zelio, J., eds. (1995). States and tribes, building new traditions. Denver, CO:
           National Conference of State Legislatures.


Schmid, D. (2000). Potential for Washington State Indian tribes. Seattle, WA: Casey Family
           Programs.


University of Minnesota, Adolescent Health Program. (1992). The state of Native American youth
           health. St. Paul, MN: University of Minnesota.
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U.S. Department of Health and Human Services, Administration for Children and Families.
           (2004). FY 2005 Administration for Children and Families budget justification.
           Washington, DC: U.S. Government Printing Office.


U.S. Department of Health and Human Services, Administration for Children and Families.
           (2001). Child maltreatment 1999. Washington, DC: U.S. Government Printing Office.


U.S. Department of Health and Human Services, Office of Inspector General. (1994).
           Opportunities for ACF to improve child welfare services and protections for Native
           American children. Washington, DC: U.S. Government Printing Office.


U.S. Department of Interior. Bureau of Indian Affairs. (2003). FY2004 Bureau of Indian Affairs
           budget justification. Washington, DC: U.S. Government Printing Office.


U.S. Department of Justice. (1999). American Indians and crime. Washington, DC: U.S.
           Government Printing Office.

                                                                      nd
Utter, J. (2001). American Indians: Answers to today’s questions (2        ed.). Lake Ann, MI:
           Woodlands Publishing.




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   Data Issues Regarding Abuse and Neglect of American Indian/Alaska Native Children
                                        Kathleen A. Fox, PhD


                                              Abstract


           The collection of accurate data on the abuse and neglect of American Indian/Alaska
Native children is crucial if we are to know how to intervene to address this important issue;
however, current data are lacking, inadequate, or inaccurate. This chapter delineates some of the
issues that have led to the lack of adequate and accurate data and presents evidence of
conflicting statistics from different sources. Child abuse and neglect data are used by the federal
government, tribes, independent researchers, and human services agencies; however, issues of
responsibility for the collection, use, distribution, and maintenance of data have essentially
resulted in no one having a complete picture of abuse and neglect in Indian Country. Chief
among this review‘s suggested solutions to the problem of accurate data collection is to give
American Indian/Alaska Native nations full responsibility for the collection and dissemination of
data on the abuse and neglect of children in their communities. Indian nations must be given the
support and resources already given to the states to provide timely and correct information to
policymakers and others who want to assist families and communities in addressing this
widespread need.




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                                             Introduction


           The actual number of American Indian/Alaska Native children who are abused or
neglected is not known, yet excessively high rates of abuse and neglect in Indian Country have
been cited in national reports. The U.S. Department of Justice (DOJ) reported in 1999 that, on a
per capita basis, ―1995 data indicate about 1 substantiated report of a child victim of abuse or
neglect for every 30 American Indian children age 14 or younger‖ compared to a national rate of 1
incident for every 58 children of any race (DOJ, 1999). In 2000, the Child Welfare League of
America (CWLA) reported that, although American Indian/Alaska Native children only make up
1% of the population in the U.S., they represent 1.6% of substantiated or indicated child abuse
and neglect cases (Child Welfare League of America, 1999). In 2003, the U.S. Department of
Health and Human Services reported an increase in the difference between population and
percentage of victims by stating that American Indian/Alaska Native children represented 2% of
all victims (U.S. DHHS, 2003).
           All three of these national agencies obtained their information on the abuse and neglect
of American Indian/Alaska Native children from one source: the National Child Abuse and Neglect
Data System (NCANDS). However, NCANDS includes data collected almost exclusively by state
or county child protective workers, and research has shown that these workers are involved only
in approximately 61% of tribal abuse and neglect cases (Earle, 2000). These findings imply that
data on abuse and neglect of American Indian/Alaska Native children are under-reported (Fox,
2003). Other issues, such as how abuse and neglect are defined and how cases are counted in
NCANDS lead to the opposite conclusion that numbers of American Indian/Alaska Native abuse
and neglect cases in NCANDS are artificially high.
           This chapter investigates the issues around data collection in Indian Country and
suggests ways to address them. The chapter is organized to address the following questions:


    1. Where do data on abuse and neglect come from?
    2. What are the key issues regarding the collection of data on abuse and neglect in Indian
           Country?
    3. What are the strengths of data collection systems that work?
    4. What are the barriers to implementation of an accurate and reliable data system?


                        Where Do Data on Abuse and Neglect Come From?
           Data on abuse and neglect come from several sources. These include federal agencies,
states, private organizations, and universities. The primary source of data is the United States
Department of Health and Human Services (DHHS).



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U.S. Department of Health and Human Services
           The primary source of information on the abuse and neglect of American children is
NCANDS, which is maintained by the Children‘s Bureau of DHHS. Data on abuse and neglect
were not collected until 1988, when the Child Abuse Prevention and Treatment Act was amended
by the Prevention, Adoption, and Family Services Act (P.L. 100-294) to establish data collection
guidelines for the states. National data was first collected in 1990 and are currently aggregated
and reported annually by DHHS in a series of Child Maltreatment publications that include state
and national figures and rates of abuse by type of abuse; demographic variables such as gender,
race, and age; and other information related to these cases. States may choose to send their
data to the National Data Archive on Child Abuse and Neglect (NDACAN) at Cornell University
where researchers can attend workshops supported by DHHS to analyze these and other data
sets. The National Data Archive on Child Abuse and Neglect also provides ongoing access to the
data for qualified researchers:


           Abuse and, especially, neglect are difficult to define, and definitions vary by state.
           As a result, there is ―no universal agreement on what constitutes child abuse and
           neglect‖ (Howling & Wodarski, 1992), and collected data do not reflect the true
           extent of abuse or neglect (Winefield & Bradley, 1992). In addition, it may be
           inappropriate to apply any state‘s definition of ―neglect‖ to American Indian
           families for cultural reasons discussed later in this manuscript.


           Apart from differences in the definitions of abuse and neglect as applied by different
states and racial groups, there are additional problems with NCANDS. One difficulty is that all of
the states do not report case-level data. States are required to produce aggregate data, but case-
level data are submitted by states on a voluntary basis. Currently, 45 states report case-level data
to NCANDS (T. Hay, National Resource Center for Information, personal communication,
September 17, 2004).
           Another issue is the way cases are counted. Case-level data counts incidents, not
children, so one child can be reported several times if he or she is involved in more than one
incident of abuse and neglect. In other words, if a child is physically abused that counts as one
report, and if at a later time the child is physically abused again, it is reported as two cases. This
problem has recently been corrected, and currently, only the few states with no case-level data
have this difficulty (T. Hay, National Resource Center for Information, personal communication,
January 17, 2004).
           The greatest difficulty in obtaining accurate data on abuse and neglect in Indian Country
is the way data for NCANDS are collected. In a survey of a 10% random sample of tribes and the
state offices where those tribes were located, Earle (2000) found that the groups in Table 1 were
involved in abuse and neglect investigations.

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Table 1: Percentage of Tribal Child Abuse and Neglect Cases in Which Group Was Involved

                      65
           70
           60
           50                        42
           40                                       31
           30                                                       19
           20                                                                       9
           10
            0
                   Tribe           State         County           BIA         Tribal Group


           There was some overlap in the above percentages, as more than one groups was
involved in most investigations. Since only state and county workers reported the cases they
investigated to NCANDS, information from other sources does not appear in the national data
system unless the state or county also reports it. There are other sources of data on American
Indian/Alaska Native children that may provide additional information on child abuse and neglect;
however, these sources are also flawed. They include the Bureau of Indian Affairs (BIA), the
Indian Health Service (IHS), and agencies, organizations, universities, or individuals concerned
with the topic.


Bureau of Indian Affairs
           The primary responsibilities of the BIA are providing education through the BIA-run
boarding and day schools and the management of tribal resources. Funding for child welfare at
the tribal level is provided either trough BIA administered tribal services or indirectly, through the
Indian Child Welfare Act (ICWA), the Indian Self Determination Act, and other federal initiatives.
The maze of federal support and funding for tribal operations does not currently lend itself to the
collection of clear and accurate data. All tribes are required to report how federal money is spent.
For abuse and neglect cases, a form provided to tribal child welfare programs by the BIA is used
to report the total abuse and neglect cases, type of referral (sexual abuse, physical abuse,
neglect), substance abuse involvement, incident characteristics, results of investigation, and
action taken. Regional offices aggregate the data they receive from the tribes and send reports to
the central office of the BIA; however, due to budget and administrative constraints, these data
are not aggregated in a national database.
           Since tribes are sovereign nations, the BIA cannot force them to report data to the
regional or central offices. Self-governing tribes have wide latitude in their sovereign status and
have no sanctions for not reporting. Tribes that contract out services to non-tribal investigators,
such as the state or county, have no data to report. This renders BIA national data incomplete or
potentially inaccurate; therefore, the BIA does not release and publish national statistics on child
abuse and neglect.

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           Regional BIA offices have autonomy from the central office and vary in their ability to
collect and analyze data. These variations include tribal characteristics such as size; number of
enrolled members; and resources of tribes in their region; as well as regional office
characteristics, such as computer availability, staff and financial resources, and relationships with
the local tribes. The Western Regional Office of the BIA, located in New Mexico, is one of the
regions that makes the collection of accurate data on child abuse and neglect a priority.


Other Sources of Data
           Other federal and private agencies or organizations collect limited national data on child
abuse and neglect on tribal lands and among tribal enrollees. These include the IHS and the
Federal Bureau of Investigation (FBI). Indian Health Service, which provides health and mental
health care to enrolled members of federally recognized tribes, collects limited tribal data on child
abuse and neglect. The IHS operates approximately 36 hospitals, 61 health centers, 49 health
stations, and 5 school health centers located on or near the tribal lands of the approximately 563
nationally recognized tribes/ tribal nations in the United States. In addition, there are 34 urban
Indian health programs operated by IHS (IHS, 2004).
           IHS enters health related data into the Resource Patient Management System (RPMS)
maintained by the IHS central office. Abuse and neglect codes are included in the database, but
the data collected are not generally accessible to the public. Also, only those abuse and neglect
cases that require a medical intervention are included in the database, as otherwise they would
not been seen by an IHS practitioner.
           The FBI collects data on cases of abuse involving tribal members investigated by their
agency but does not publish or give out this information to other agencies or groups. The FBI is
not involved in all cases of abuse and neglect, so the data they have are incomplete. Other
agencies, such as the CWLA, which sometimes conducts its own surveys, do not regularly collect
national data on abuse and neglect. Instead, they rely on data collected from the states and
reported to NCANDS.
           Other reports on the abuse and neglect of American Indian/Alaska Native children,
written by private agencies, universities, and individuals, are generally limited to one tribe, one
state, or one tribal group, depending on the interest and affiliation of the researcher. The few
complete national studies have serious flaws and cannot be generalized (Earle & Cross, 2001).
           Many tribes collect their own data, but much of this is in paper files and difficult to
aggregate. Other tribes eschew numbers and rates in favor of anecdotal evidence regarding the
wellness of their children. It is understood in most American Indian/Alaska Native communities
that the well being of children is a priority, and initiatives are undertaken to address any situation
or person who disrupts that well being. Some tribes use performance indicators rather than raw
figures of abuse and neglect to gauge the success of their child protective work; others use true
outcome data to measure success and look not at the numbers of cases but how they turn out.

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           In a small community or tribe, there is little motivation to collect statistics. In many cases,
the only motivation is the pressure brought to bear by outside groups or agencies that want to
aggregate tribal data on a state, regional, or national level. In reality, there are perceived
proscriptions against collecting data. The primary one is confidentiality. In a small community, it is
easy to recognize a person from the data collected on that person even if no identifying
information is used. Similarly, small communities are reluctant to display their ―dirty laundry‖ for all
to see, preferring to keep it within the group.
           The National Indian Child Welfare Association (NICWA) has worked with tribes and tribal
groups for the past few decades to convince them of the utility of measuring and addressing
problems of child abuse and neglect. The primary motivating factor for collecting data is the effect
that accurate tribal data can have on national policy. Statistics that accurately reflect the extent of
abuse and neglect in Indian Country can be used to create programs specifically geared to
address issues identified by the information collected and to generate funds to support these
programs.
           To date, NICWA has had great success in the training of child protective and other
professional staff to assess and treat abuse and some limited success in training tribal staff to
collect and report tribal data to outside agencies or bodies. NICWA has also worked extensively
with the National Resource Center for Information and Technology on research, data analysis,
training, and technical assistance to tribes.
           Most recently, NICWA has received a grant from the Children‘s Bureau of DHHS to
design a model child abuse and neglect data collection and reporting system and to assess its
utility for increasing the accuracy of tribal data in NCANDS. This project has, to date, convened
several meetings of tribal representatives to design culturally appropriate abuse and neglect data
elements and to determine the exact resources needed to implement a national computerized
reporting system.
           In summary, although figures cited on the abuse and neglect of Indian children are higher
than those for children in general in the United States, these figures are suspect for a number of
reasons. Evidence that the reported figures are lower than the real numbers is found in the fact
that national data on child abuse and neglect rely on information from state or county workers and
the fact that these workers are involved in only about 60% of abuse and neglect cases in Indian
Country. Evidence that figures are higher than the real numbers is found in the definitions of
abuse and, especially, of neglect by mainstream workers who report neglect when there is none
in the eyes of the tribal community. These differences are due to cultural misinterpretation as well
as to centuries of engagement in sometimes hostile but frequently cross-purposeful relationships.
           Further evidence, obtained by comparing information from two different federal sources
of child abuse and neglect data, brings into question the accuracy of any data, whether high or
low, from Indian Country. Clearly, an intensive effort to address these difficulties is called for.
Following is a discussion of the key issues that must be addressed.

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What Are the Key Issues Around the Collection of Data on Abuse and Neglect from Indian
                                               Country?
           The key issues in the reporting of data on the abuse and/or neglect of American
Indian/Alaska Native children include measurement of abuse and neglect, how data are used,
and the responsibility for data. Each of these issues will be explained in further detail.


KEY ISSUE: Measurement of Abuse and Neglect
           The standard and expected measurement approach to gathering data on abuse and
neglect has been found to produce inaccurate and misleading statistics in the case of American
Indian/Alaska Native children in this country. This approach is to collect detailed information on
each case of abuse and demographic information on each child abused and each perpetrator of
abuse and to compare it to similar data from other groups. For various reasons, this system has
not worked for tribal sovereign nations. These reasons include:


          Differences in how abuse and neglect are defined based on the understanding of
           different cultures;
          Ways the data are collected and analyzed; and
          Overlap in data collection from tribal communities.


Who Is American Indian/Alaska Native?
           According to Jack Utter, as quoted by Goodluck and Willeto (2000), ―Before first
European contact, the answer to ‗Who is an Indian?‘ was easy. Nobody was . . . . Prior to
contact, American Indian/Alaska Native people were not defined as a group but were members of
their own socio-political and cultural groups.‖ Today, the indigenous people of North America
have been grouped under the designation ―American Indian,‖ ―Native American‖ or other
appellation for the convenience of demographers, social scientists, and others who would like a
count of each disparate group of people in the United States or Canada.
           Among the 563 tribes and Alaska villages in the United States, the tribal community
defines the criteria for who is a tribal member based on such things as blood quantum, heritage,
and community recognition. Because these requirements vary by tribe and tribal community,
persons of different blood quantum (which may vary from ½ to 1/8 or less), for example, may be
recognized as ‗American Indian‘ in some communities and not in others. Tribes also define
persons in terms of matrilineal or patrilineal descent, so a person who, for example, has a mother
who is non-Indian may be considered a tribal member in a community that recognizes patrilineal
descent but not in a community that requires Indian descent be based on the mother‘s lineage.
When a tribe confers recognition on a person, that person can enroll as a tribal member.
According to the National Congress of American Indians (NCAI) (2003), ―The total American
Indian & Alaska Native population in the United States today is 4.12 million, roughly 1.5% of the
total U.S. population‖ (p 15).
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         According to the 2000 U.S. Census, approximately 2.4 million people responded that they
are American Indian/Alaska Native alone, while there were approximately 10 million persons who
identified themselves as at least partially American Indian/Alaska Native.
         The degree of assimilation of American Indian/Alaska Native people into the general
community has made it difficult for workers to know who is and who is not a tribal member. The
Indian Child Welfare Act, for example, requires that workers inquire as to whether a child is a
member of a tribe. This is not always easy to determine based on the appearance of a child. This
problem leads to the possible over or under-estimation of the numbers of children who should be
counted in any data collection effort, especially within a community that is not familiar with the
tribal members of a specific area.


Differences in the Definition of Abuse and Neglect
         Each state is given latitude to develop its own definitions of abuse and neglect, which
leads to different definitions in different areas of the country. According to the CWLA (1999),
every state uses is own definition of abuse and neglect and applies its own standards of proof in
substantiating whether abuse has occurred. Because definitions, methods, and data collection
systems differ, seemingly similar statistics collected by the states may vary too much to allow for
direct comparison. Due to these differences in reporting abuse and neglect, there was a ―twenty-
five fold difference between the highest and lowest state rates of substantiated or indicated abuse
and neglect (CWLA, 1999).
         Numbers of incidents of abuse and neglect involving American Indian children are
reported by the states or counties to the national data system; thus, they are subject to the same
differences in count as the other cases from those states. However, for American Indian/Alaska
Native children, there are other reasons for the miscalculation of abuse and neglect rates.
Differences in cultural norms account for much of the discrepancy between data that are found in
NCANDS and real numbers of abuse and neglect in American Indian/Alaska Native communities.
         Although total numbers and rates of abuse of American Indian children are probably
inaccurate (Fox, 2003), the percentage of abuse and neglect that is determined to be ―neglect‖
can be used to compare American Indian/Alaska Native cases and cases for other children. Data
from NCANDS show that rates of neglect are higher than rates of abuse for all children but that
these differences are greatest among American Indian children. In 2001, approximately 59% of
child victims suffered neglect (including medical neglect); 19% suffered physical abuse; 10%
suffered sexual abuse; and 7% suffered emotional or psychological abuse55 (DHHS, 2001). A
review by the author of raw NCANDS data from 1995-1999 found rates among American Indian
children to be 77% neglect, 18% physical abuse, and 6% sexual abuse. These compared to rates
of 70% neglect, 21% physical abuse, and 10% sexual abuse among White non-Hispanic children.
Differences in the number and percentage of White and American Indian children who were


55
 Totals do not equal 100%, because one child may the victim of more than one type of abuse.
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victims of neglect, physical abuse, and sexual abuse at the .001 level were each statistically
significant (Earle & Cross, 2001). These differences between Indian children and children of other
races are troubling, as the definition of neglect as it applies to American Indian/Alaska Native
children has been brought into question by several authors (Byler, 1977; Horejsi et. al, 1992;
Ishisaka 1978; Johnston, 1983; Ross, 1992; Westermeyer, 1977).


Differences in Cultural Norms
           Indigenous people, as a whole, have long been recognized as being culturally different
from mainstream American society and from other ethnic or cultural groups in the United States.
Unlike members of other diverse groups in the United States, American Indian people are
members of federally recognized tribes and afforded sovereign nation status by the U.S.
Constitution; however, the sovereign nation status of tribes provided by the U.S. Constitution has
not always been honored by the federal government or recognized by the states.
           Despite a traumatic history filled with misguided attempts at removal, assimilation, or
destruction of tribes, many American Indian/Alaska Native people have maintained their
traditional beliefs and practices. These include attitudes toward and methods of child rearing.
Before contact with persons of European descent, indigenous children were treated with respect
and leniency, and given a great amount of independence. Severe restraint and severe physical
punishment were rare (Cross, 1986). According to several authors, many tribal groups or families
still maintain this view of child rearing (Red Horse, Martinez, Day, Day, Poupart, & Scharnberg,
2000).
           A primary difference between Indian and mainstream homes is the relative importance of
the parental relationship. In mainstream America, the individual‘s primary source of identity is the
nuclear family, and social welfare policy and practice define the child-parent bond as the central
determining factor in abuse and neglect investigations (Wasserman & Rosenfield, 1986). In
contrast, many Indian communities define the individual by his/her membership in the extended
family, clan, and tribe, and extended families share responsibility for the welfare of all family
members. This is reflected in what relatives are called. In some traditional Indian cultures, terms
such as ―mother,‖ ―father,‖ ―aunt,‖ and ―uncle‖ are interchangeable for all relatives of a child of a
certain age, and ―brother‖ or ―sister‖ apply to cousins as well as to siblings (Swinomish Tribal
Mental Health Project, 1989). Relatives unable to work stay home and care for the children and
are supported by other members of the extended family. Grandmothers and aunts share
childcare with mothers. Children are as likely to be found in the home of an aunt or uncle as in the
home of their parents (Attneave, 1977).
           Other differences between mainstream and American Indian/Alaska Native homes and
communities can be found in people‘s relationships to each other and to outsiders. Such cultural
norms as a reluctance to confront or trust outsiders (Horejsi, Heavy Runner Craig, & Pablo,
1992), the use of silence as punishment of a child (Ishisaka, 1978), or the autonomy afforded

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children even at a young age (Ross, 1992) may be cited as negative findings or misinterpreted by
case workers asked to investigate alleged abuse or neglect.
           Differences in cultural interpretation may lead to removal of a child from a dysfunctional
nuclear family when in reality the child is being successfully nurtured and raised by relatives other
than his or her parents; or from an intact family who does not relate to the worker in the way that
he or she expects. Several Indian authors have documented the unfair removal of children from
homes and families deemed acceptable in American Indian/Alaska Native communities but
unacceptable by child welfare workers who were unfamiliar with the cultural norms of those
communities (Byler, 1977; Horejsi et. al, 1992; Ishisaka 1978; Johnston, 1983; Westermeyer,
1977).
           Different cultural norms may lead to a finding of abuse and neglect for an American
Indian/Alaska Native child or family based on misinterpretation of what constitutes abuse or,
especially, neglect, which is more frequent than abuse as a reported incident in American
Indian/Alaska Native homes. It is hard to tell, for example, how much of the reported neglect is
due to poverty, which is reported to be higher in homes of American Indian/Alaska Native children
who are victims of abuse and neglect (27%) than among, for example, White children who are
victims of abuse and neglect (23%) (Earle & Cross, 2001). Poverty is an issue that has received
some attention as a possible misleading factor when neglect is being investigated (Howing &
Wodarski, 1992); in consequence, the NICWA Child abuse and neglect project‘s steering
committee decided when defining neglect to specifically state that ―poverty is not neglect.‖ As
stated above, misinterpretations of other cultural norms such as extended family care for a child
and interpersonal behaviors and norms can also lead to higher findings of neglect among
American Indian/Alaska Native families.


Abusive and Neglectful Institutions and Environment
           Besides cultural norms, any definition of abuse and neglect in Indian Country must take
into consideration the role of abusive and neglectful institutions and environments in fomenting or
encouraging abuse and neglect. Over the last four centuries, the indigenous approach to child
rearing has been negatively affected by the gradual domination of Indian life by persons,
institutions, policies, and administrative oversight outside of tribal jurisdiction. The effects of
historical trauma on American Indian/Alaska Native children and families has been well
documented and is covered in depth Chapter Four, ―Effects of Abuse and Neglect on American
Indian/Alaskan Native Children.‖ Abusive and neglectful institutions and practices by mainstream
agencies and governments have led to abuse of American Indian/Alaska Native children in
several aspects. In addition, it has led to perceptions of American Indian/Alaska Native children
and families that may, as with the attitudes about neglect discussed above, lead to unfair and
inaccurate findings of abuse and neglect where none have occurred.



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How Are Data Collected and Analyzed?
           How rates of abuse or neglect are calculated is another issue that makes the
measurement of abuse and neglect difficult. They are usually based on numbers obtained from
U.S. Census data of incidents reported compared to number of children in the population. For
example, let us look more closely at the rate quoted above:


           1995 data indicate about 1 substantiated report of a child victim of abuse or
           neglect for every 30 American Indian children age 14 or younger [compared to a
           national rate of one incident for every 58 children of any race] (DOJ, 1999).


           This statistic compares data from NCANDS to population figures to create a rate of abuse
and neglect per every 30 children. In 2000, a statistical analysis of data from NCANDS found that
American Indian/Alaska Native children were statistically more likely to be involved in more than
one incident of abuse and neglect than White children. Fourteen percent of the American
Indian/Alaska Native children in the four states with the largest American Indian/Alaska Native
population in NCANDS data were counted more than once compared to 10% of White children
  2
(X =107.6, 3 df, p<.001) (Earle & Cross, 2001). This means that errors in calculated rates are
more likely for American Indian/Alaska Native children than for White children.
           Another issue related to the calculation of rates of abuse and neglect, especially in the
case of American Indian/Alaska Native data, is the use of U.S. Census data. Census data are
difficult to collect from tribal groups, not least because of the difficulties in determining who is an
―American Indian‖ as discussed above. Other studies have found that tribal communities are not
as compliant in providing census data as other groups. According to Goodluck and Willeto (2001),
the estimated undercount rate in the 2000 U.S. Census for American Indian/Alaska Native
children under age 18 was 14% compared to 3% for all children under 18. Comparing numbers of
incidents of abuse and neglect to U.S. Census numbers for American Indian/Alaska Native
children becomes even more problematic when the exceptional unreliability of the U.S. Census
data for American Indian/Alaska Native children is demonstrated. Even if U.S. Census data were
accurate and comparisons were made by using numbers of children rather than numbers of
incidents, there would still be difficulties in reporting methods that would cause child abuse and
neglect data from Indian Country to be suspect.


Overlap in Data Collection from Tribal Communities
           Although NCANDS is the primary source of data on the abuse and neglect of children,
there are a few other sources of data for American Indian/Alaska Native children. A comparison
of two of these sources is instructive as to the accuracy of abuse and neglect data from Indian
Country. In 1999, data on Indian child abuse and neglect were available from three states through
two different sources: the Western Regional Office of the BIA and the DHHS National Child

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Abuse and Neglect Data System. The following charts compare the numbers of cases and the
rates of abuse and neglect from three states reported by these two federal agencies.


Figure 1: Number of Substantiated Cases of CA/N for American Indian Children 1999

 1400           1280
 1200

 1000
  800                                                                         BIA
  600                  523                                                    DHHS
                                                         351
  400
                                                               171
  200                                88 110
     0
                 Arizona             Nevada                Utah

           Figure 1 shows the numbers of substantiated cases of American Indian/Alaska Native
child abuse or neglect reported by the states of Arizona, Nevada, and Utah in 1999. As this figure
shows, the numbers differ dramatically in Arizona, somewhat in Utah, and to some extent in
Nevada. It is impossible to know the true number of American Indian/Alaska Native cases from
either source, as each may be incomplete. This is because some tribal data goes to the states,
some to the BIA, and some to both. Therefore we do not know whether the two numbers shown
for each state should be added together, as in the case of separate reports to two different
agencies; whether they should be combined, as in the case of the same reports going to two
different agencies; or whether some of the cases should be added together and some separated
out, as in the case of some reports going only to the BIA, some going only to DHHS, and some
going to both.




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Figure 2: Rate of Substantiated Cases of CA/N for American Indian Children—1999


   35
                                                             30.21
   30
   25
   20                                                                                BIA
                12.72                           13.63                14.72           DHHS
   15
                                     10.91
   10
                        5.2
     5
     0
                 Arizona                Nevada                  Utah

           Figure 2 shows the same states, using rates per 1000 children in the U.S. Census, rather
than raw numbers of cases reported. As shown above, the rate of abuse and neglect reported by
two different federal sources, the BIA and DHHS, for the same states and during the same
timeframe varies substantially.
           Again, there is no way to determine if information from the two sources is separate or
overlapping. Adding together the figures for each state would lead to reports of higher rates of
abuse and neglect much higher from Indian Country than those reported in current national
statistics and featured in the reports of the U.S. DHHS, the CWLA, and the U.S. DOJ. If
overlapping, there is no way to determine which cases have been reported by both the BIA and
DHHS and, therefore, no way to remove or add cases to the official count. In addition, we do not
know how these three states define abuse and neglect or whether their definitions differ to an
extent that would preclude comparisons across states (Earle & Cross, 2001).


KEY ISSUE: How Are Data Used?
           Currently, data on the abuse and neglect of American Indian/Alaska Native children are
used primarily by agencies concerned about Indian child welfare and by the tribes themselves.
Due to the limitations of the data described previously, there is little use of the data by Congress

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to set policies and to address issues around the treatment of abuse and neglect in Indian
Country.


Federal Use of Data
           Data on Indian children, as previously stated, are collected primarily by DHHS as part of
the national reporting system and to a lesser extent by the BIA, IHS, and the FBI. Yet, there is
little reporting of these data back to Congress.
           House and Senate subcommittees on interior appropriations would be the first to see
child welfare data from Indian Country, since programs that fund tribal child abuse and neglect
prevention primarily come from BIA administered programs. However, due to the administrative
and jurisdictional issues mentioned above, the BIA usually provides very little descriptive data to
the Senate or House subcommittees when they testify on their budget. The bottom line is that
federal policymakers do not now have a very informed picture of what the issues and needs are
in Indian Country.
           Data from NCANDS are not presented to the subcommittees on interior appropriations,
although they may be provided to other appropriation subcommittees (e.g., House Labor, Health
and Human Services, and Education) that have jurisdiction over the Title IV-B and IV-E
amendments to the Social Security Act. However, it is doubtful that Indian children are
distinguished in the data. As mentioned earlier, the only situations where tribes are actually
providing first hand data would be tribal reports submitted to the BIA and IHS. There are serious
questions as to how much and how accurate and descriptive the data being shared is (D.
Simmons, National Indian Child Welfare Association policy director, personal communication,
December 8, 2003).
           Although figures from Indian County are part of the larger data set collected by NCANDS,
they are not routinely separated out by federal agencies. Scattered facts and quotations from the
reports of the BIA, DHHS or DOJ may appear in speeches given by federal legislators or as part
of the justification for funding that appears in grant appropriations and Guidance for Applications
(GFA) materials. These data, even when they are part of the publications of other federal
agencies, are primarily obtained from NCANDS (Earle & Cross, 2001).


Tribal Use of Data
           The most important beneficiaries of data, then, are tribes themselves. The ability of tribal
communities to collect and analyze their own data has been negatively affected by contact with
other cultures and oversight by federal agencies over the past few hundred years. Most tribes
maintained history as the basis of child welfare habits and approaches, and this worked well, until
communities became complicated by their involvement with a culture outside their own. Only over
the last few decades have tribes been able to reassert themselves in the area of data collection
and analysis. Many have risen to the challenge and adopted mainstream methods and attitudes
toward the use and value of data. In a recent interview with tribal representatives at five sites,
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nationwide, the following attitudes and values about the collection, analysis, and use of data were
noted:


              Accurate and reliable data that respect confidentiality are highly valued.
              These sites have dedicated considerable time and resources to data collection, with
               strong results.
              Lack of resources has led to some creative solutions to data collection.
              The use of tribal data has led to improved relationships with other jurisdictions.
              Data that is collected by Indian communities or agencies continues to be seen as
               inaccurate or unreliable by other jurisdictions.
              Data provided to funders by tribes is seldom returned in a useable form.
              Redundant data entry is required by the many overlapping systems of data reporting
               required of tribal sites.
              Negative historical experiences with outside researchers is common and leads to
               reluctance to participate in more such studies.
              Inaccurate and unreliable data from outside sources is sometimes used to the
               detriment of Indian programs.
              A strong leader, an acute need, or funder expectations drives tribal data collection
               (Cross, Fox, Becker-Green, Smith, & Willetto, 2004).


           In general, these tribal groups found that accurate data helped them plan and refine
services to children, justify expenditures within the tribe, and support the need for funding from
state or federal grant-giving organizations. A crucial part of sharing data with other bodies was
related to the ownership of the data. Generally, tribes want to maintain ownership of data on their
own tribal members but are willing to allow judicious use of their data by outside funders,
organizations, or researchers.
           The measurement of abuse and neglect in Indian Country must take into account all of
these factors. There is no question that problems of abuse and neglect need accurate statistics
as a basis for intervention. The question is how to balance the needs of federal, state, and other
mainstream agencies with the needs of the tribes in order to collect accurate statistics. This is
partly a question of jurisdiction, and who is responsible for data collected from sovereign tribal
governments is central to the issue of jurisdiction.


KEY ISSUE: Responsibility for Data
           As stated, DHHS is the primary source and collection agency for data on the abuse and
neglect of all children in the United States. Unfortunately, the data on American Indian/Alaska
Native children in NCANDS are inaccurate, and this problem has not yet been addressed. The
BIA, the primary oversight agency for tribes, does not have a mandate to compel sovereign tribes
to report data on the abuse and neglect of children, and resources have not been produced to
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accompany the Indian Child Protection and Family Violence Prevention Act of 1990 (P.L. 101-
630), which would facilitate the collection of these data. Other federal agencies have limited
responsibility for partial data on the abuse and neglect of children that fall within their mandates,
and there is no way to combine the various reports from these disparate agencies.
           Over the past several decades, sovereign tribes have been given back some of the
power and opportunities wrested from them during the previous centuries. Tribes have shown
both the willingness and the ability to operate and oversee child welfare programs and have, in
many cases, also been able to provide the fiscal resources. Tribal groups, who have been
appropriately suspicious of outside groups that want data from them, are now poised to take over
the collection, analysis, and administration of data for their children. However, in order to ensure
that data collected directly from the tribes would be complete, reliable, and accurate, substantial
changes and resources would be needed to assist and train them in this effort (T. Hay, National
Resource Center for Information Technology, personal communication , September 17, 2004).


                          Strengths of Models that Demonstrate Success


Factors that Lead to Good Relationships
           In a survey of a 10% sample of tribes and the states where they are located, the author of
this paper found that there were three factors that led to a more positive relationship between
tribes, which had data on the abuse and neglect of their children, and the state workers who
collected that data to send to NCANDS:


           1. Sharing of information was collected by an outside group with the tribe.
           2. State/tribal agreements were in place.
           3. Only one group was responsible for the investigation of abuse and neglect, whether
               this was the state, county, tribe, BIA, or a tribal consortium (Fox, 2003).


           As with every other aspect of human interaction, clear and honest communication fosters
positive relationships. This survey determined that both tribal and state workers reported more
positive relationships when information was shared and jurisdiction was clarified. Forty-three
percent of state workers and 25% of tribal workers, when asked what could be done to ―make the
Indian child abuse and neglect system work better,‖ responded with ―improved communication
and coordination between tribes and states‖ (Earle, 2000).
           The enhancement of state-tribal relationships through improved communication and
tribal/state agreements can happen only by voluntary commitment to the process on both sides,
as the U.S. Constitution and Supreme Court decisions expressly forbid state oversight of tribal
groups. Currently, some tribal/state agreements have been forged to allow federal funds awarded



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                                                                                 56
to states under such legislation as Title IV-E of the Social Security Act             to flow from the states to
the tribes, as there is no direct route to tribal communities. Some states have expanded such
agreements to include all aspects of child welfare, including the investigation of abuse and
neglect and provisions of the Indian Child Welfare Act (Brown, Limb, Whitaker, Clifford, & Munoz,
2000). At the time of Brown et al.‘s study of title IV-E agreements, 13 states had such agreements
with 71 American Indian tribes.


Model Reporting System for Tribal Abuse and Neglect Statistics
            Difficulties in the areas of jurisdiction, tribal/state relationships in general, and definition of
terms led in 2001 to the awarding of a five-year grant from the Children‘s Bureau of DHHS to
NICWA to establish a model tribal child abuse and neglect reporting system and assess its utility
for increasing the accuracy of tribal data in NCANDS. This project has, to date, convened several
meetings of representatives from four tribes and one Alaskan Native corporation to design
culturally appropriate abuse and neglect definitions and data elements and to determine the exact
resources needed to implement a national Web-based reporting system.
            The model reporting system will rely on tribes for the collection of data on their own
children. Tribes will have the ability to send their data to NICWA to be aggregated, and will note
which, if any cases, have also been investigated by state or county workers. NICWA will then use
the data sent by tribes with tribal permission to the following:


            1. Aggregate data on all tribes participating in the system
            2. Send data to NCANDS that matches NCANDS data elements and which have been
                 designated as new data, not collected by state or county workers, so that tribal data
                 will supplement rather then duplicate state-supplied information in NCANDS


The proposed NICWA system is based on three interlocking values. These are tribal sovereignty,
culturally appropriate definitions of abuse and neglect, and strengths-based practice, long a
                                                  57
staple of American Indian child welfare.


Tribal Sovereignty
            The primacy of Indian tribes/nations in the care and nurturing of their children is a central,
founding value of the National Indian Child Welfare Association. In designing a data collection for
tribes, NICWA has incorporated this value into the design by relying on tribal input for the system
design and by ensuring that control of each tribe‘s data is in the hands of that tribe. Each tribe
who participates in the data reporting system will decide whether data can be seen or used by
just the tribe, by NICWA, by the federal government through NCANDS, or by outside researchers


56
     Which covers foster care and adoption services
57
 For more information on this NICWA project, contact Jody Becker-Green at 503-222-4044.
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through the Cornell University National Data Archive on Child Abuse and Neglect (NDACAN).
NICWA, NCANDS, and NDACAN will be aware of the tribes that have and have not sent their
data, thus allowing some estimations to be made based on which tribes are included in the data
system. Even without 100% participation by tribes, this system will be vastly superior to the
current system in which the extent of tribal participation is unknown.


Culturally Appropriate Definitions
           In its last annual report regarding abuse and neglect, the CWLA noted that varying
definitions of abuse and neglect across states make comparisons difficult and potentially
inaccurate (CWLA, 1999). The problem of differing definitions across cultures has not been so
clearly delineated or, more importantly, addressed. A primary goal of the NICWA effort has been
to define abuse and neglect from the American Indian/Alaska Native perspective. To date, the 5
tribal groups assisting NICWA, which represent 4 tribes and 1 Alaska Native corporation, have
created draft definitions of abuse and neglect to use in the model system. These definitions
specify, for example, that poverty alone does not constitute neglect, and they expand the
definition of caretaker to include ―Indian custodian.‖ These are only two of the changes being
considered for the definition of neglect in Indian Country. The removal of ―poverty‖ as a possible
cause of neglect relieves the burden of proof from many tribal workers for whom the poverty of
their clients is both endemic and, in many cases, not directly related to the Indian child‘s overall
well-being. The inclusion of ―Indian custodian‖ as a possible caretaker appropriately allows for the
inclusion of a close relative as the primary relationship for an Indian child and removes the
dominant emphasis on the parental relationship that is part of the ―nuclear family‖ model of
mainstream society.


Focus on Strengths
           A community or individual assessment based solely on perceived weaknesses cannot
identify people, organizations, or traditions in a community that may be instrumental in planning
for the future. To date, NCANDS has collected information on family and child problems such as
drug or alcohol abuse, violence in the home, and poverty. According to Greenbaum (1997),
approaches that are based on perceived weaknesses are likely to see members of that
population as incapable of solving their own problems. This is an inaccurate, unfair, and wasteful
estimate of the capabilities and resources of a community or an individual. Data systems that
gather only negative information support an image of weakness and failure. Thus, information on
strengths must be included as well.
           In keeping with this attitude, tribal representatives, working with NICWA, have developed
several strengths-based indicators that will be collected along with other NCANDS family and
child characteristics and indicators of abuse in a later phase of the grant. These include the
following:

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              Extended family support
              Community support and involvement
              Access to resources and tribal/community programs
              Adequate medical services
              Transportation
              Job skills, earning power, and ability to economically support
              Subsistence planning and preparation
              Religious spiritual practices
              Positive self-esteem
              Clear value system
              Willing to do what needs to be done
              Alcohol-and drug-free
              Overall physical health
              Good hygiene/appearance
              Elder access and support
              Problem-solving and decision-making skills
              Parenting skills


           These variables will be coded from 1 to 5 as follows: (1) not at all adequate, (2) seldom
adequate, (3) sometimes adequate, (4) usually adequate, and (5) almost always adequate. It is
anticipated that data on these variables will be collected with other data and that much of it will
closely parallel data now collected by the states for NCANDS. The intent is to provide a more
balanced picture of each child who is a victim and to pinpoint areas of possible intervention for
the child and family.
           A focus on strengths rather than problems is central to the American Indian/Alaska Native
view of children and child welfare (Cross, 1986), and NICWA has captured some of this emphasis
in its data collection instrument for child abuse and neglect cases. Formidable barriers to the
design and implementation of a nation-wide system of data collection from tribes, however, are
still anticipated.


                           Barriers/Challenges to Addressing Key Issues
           Current problems in data collection from Indian Country continue to interfere with
obtaining accurate statistics needed by tribes, policy makers, and organizations serving American
Indian/Alaska Native youth and families. Although some of these problems have been identified,
major barriers to developing a tribal data collection system still exist. These are in the areas of
definition of abuse and neglect, funding of national data collection efforts, and lack of oversight of
sovereign Indian nations.



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Continuing Barriers Regarding the Definition of Abuse or Neglect
           NICWA spent a year defining abuse and neglect from an Indian perspective with the help
of five tribal groups, which represent four American Indian tribes of varying size and an Alaska
Native corporation. To expand tribal participation, the definitions were also distributed to
participants at NICWA‘s annual conference, and several members of other tribal groups returned
comments. However, just as it is impossible to generalize between states, it is impossible to
assume that the definitions from these several tribes fit all of the diversity found in the
approximately 563 tribes in the United States. If and when the NICWA data collection effort is
expanded to collect data from all tribes in the United States, changes suggested by member
tribes can be incorporated into the definitions of abuse and neglect and related terms in future
years. The system is intended to be flexible enough to accommodate these recommendations as
they occur and are endorsed by other tribal groups.


Barriers Regarding Funding of a National Reporting System for Tribal Abuse/Neglect
           Currently, tribes receive funds from a number of federal, state, private, and tribal sources.
Each source requires that data be reported in a certain format and within a certain timeframe, and
these requirements rarely match. Each agency involved in tribal child abuse and neglect has its
own funding and reporting system and requirements. Choosing one of these agencies to design,
fund, and oversee a child abuse and neglect reporting system would involve the use of an
existing relationship, with all of its inherent difficulties, to perform a new function and would
continue the overlap in jurisdiction with other agencies performing a similar function. Tribes must
be able to use an approach that permits integrated data systems that can meet their needs. This
will require inter-agency cooperation at the federal level as well as creative approaches by tribes
and the persons and agencies working with them to collect accurate data.
           NICWA‘s current effort to produce a model reporting system will include a feasibility study
to define the amount of money, staff, and other resources needed in order to implement the
system nation wide. It is hoped that the cost of the system will not outweigh the need to produce
accurate and timely data from a severely under-funded and unique tribal network of child welfare
workers and administrators. It is also hoped that research will continue on the collection of data
from Indian Country, as part of a cost sharing effort between private and public organizations and
the tribes.


Barriers Regarding Oversight of Tribal Data Reporting
           The involvement of tribes in a reporting system must be voluntary due to their sovereign
status and to the recognition of tribal autonomy. This may lead to the lack of involvement of many
of the 563 Native American/Alaska Native tribes and villages in the United States. Since reporting
cannot be mandated, it is important to include an incentive for tribes who report. This may be in
the form of computer software and/or hardware and/or free training on-site or at national
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seminars. A network of trainers, consultants, and friends who are vetted by each tribe could
provide the services needed by tribes to keep the system accurate, reliable, and current. Without
the equipment, support services, and encouragement of such a system, there will be little reason
for tribes to participate.
           These barriers lead to recommendations for the development of a reporting system for
tribal abuse and neglect in the areas of policy, practice, and research.


Conclusion
           The process of collecting data on the abuse and neglect of American Indian/Alaska
Native children has been inadequate, leading to missing or inaccurate information. The above
recommendations provide suggestions for addressing this important issue through initiatives in
the areas of policy, practice, and research. Chief among them is giving American Indian/Alaska
Native nations more responsibility for the collection and dissemination of data on the abuse and
neglect of children in their communities. Indian nations should be afforded the support and
resources given to the states in providing programs and gathering data to assist policy makers,
families, communities and other persons and agencies who assist in addressing this widespread
need. In addition, research in the area of abuse and neglect needs to be designed so that tribal
groups can participate at all levels, along with local, state, federal and private agencies.




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                                            REFERENCES


Attneave, C.L. (1977). The wasted strengths of Indian families. In S. Unger (Ed.). The destruction
           of American Indian families. New York, NY: Association on American Indian Affairs.


Brown, E., Limb, G., Whitaker, L., Clifford, C., & Munoz, R. (2000) Tribal/state Title IV-E
           intergovernmental agreements. Seattle, WA: Casey Family Programs.


Byler, W. (1977) The destruction of American Indian families. In S. Unger (Ed.). The destruction
           of American Indian families. New York, NY: Association on American Indian Affairs.

                                                           rd
Canby, W.C. (1998) American Indian law in a nutshell. (3 ed.). St. Paul, MN: West Publishing
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            Effects of Abuse and Neglect on American Indian/Alaska Native Children
                                         Thomas L. Crofoot


                                              Abstract
           This chapter examines effects of child abuse and neglect on American Indian and Alaska
Native children. Many conditions leading to child abuse and neglect were created by institutional
abuses on reservations and from attempts to assimilate tribal members.
           Despite the absence of reliable prevalence and incidence information, child abuse and
neglect is perceived as a serious problem. Conditions including poverty, substance abuse, single
parents, low birth weight, lack of prenatal care, disabilities, and teen parents are pervasive and
potentially contribute to increased child abuse and neglect.
           Policy recommendations are as follows: examine welfare reform, expand tribal access to
the Child Abuse and Prevention Treatment Act (CAPTA), and improve boarding schools. Practice
recommendations are as follows: increase health care screening, provide training, use court
appointed special advocates (CASAs), and divert youth from juvenile justice programs. Child
Abuse Prevention Treatment Act research funding should support understanding unique risk and
protective factors.




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                                                Story
           Not so long ago in Portland, Oregon, the number four city bus was know as the ―Indian
bus.‖ This bus line happened to run between the outpatient clinic of the Native American
Rehabilitation Association (NARA) and the Urban Indian Health Clinic, also run by NARA.
Frequently, two or four or a dozen American Indians or Alaska Natives would ride the bus, and
talk would turn to children. Most of the parents talked about their children dancing in pow wows,
or beading, or taking classes, or participating in other cultural activities, along with soccer and
baseball and school plays. They described healthy happy children cherished by parents and
grandparents and finding support in Indian communities. Sometimes parents would describe their
struggles to find clothes or school supplies or even enough food for their children, and they would
share resources and tips and even spark giving sessions on the bus to help parents provide
necessities. They talked about needing to give up smoking and junk food to set an example for
their children. A few parents were clearly at risk. They talked about precious days or weeks or
months of sobriety and about knowing they should stay clean and sober to take care of their
children or to even get their children back. They talked about being single or on their own or
fighting with the other parent. Often they were new in town and didn‘t know where to turn for help.
Their exchanges with their children alternated between being giving and indulgent and being
strict, demanding, and demeaning. Riding this Indian bus, the hope and joy and promise of new
healthier children could be seen, as could the work to be done and the sorrow and despair for
children who might still be injured or lost.




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                                              Introduction
           This chapter examines the adverse effects of child abuse and neglect on American Indian
and Alaska Native children. The first section defines neglect and abuse, while the second section
describes the literature on neglect and abuse for children in the United States. Where possible,
research indicating differences or supporting key findings for American Indian and Alaska Native
children is provided. The third section recommends policy, practice, and research steps
necessary to understand and address the underlying causes of child abuse and neglect in Indian
Country.
           The diversity of American Indian and Alaska Native tribes and villages cannot be
overemphasized when thinking about child abuse and neglect in Indian Country. Tribes, villages,
reservations, and urban Indian communities have vastly different resources, social and economic
conditions, and cultural and traditional practices. These differing conditions affect child abuse and
neglect and mean that no statements about child abuse and neglect apply to all tribes, villages,
and urban communities across the country. Another important consideration includes the history
of attempts to eliminate tribes and federal underfunding of reservations that some authors
describe as institutional abuse and neglect of tribes, which in turn creates neglectful and abusive
environments for children.


                                              Background
           Prevalence rates for child abuse and neglect are difficult to determine for any population,
but especially difficult to assess for American Indian youth (Bohn, 1998; Bohn, 2003; Fox, 2003;
Willis, Dobrec, & Bigfoot, 1992). Although figures cited on the abuse/neglect of Indian children are
higher than those for children in general in the United States, these figures are suspect for a
number of reasons. Fox examines current research and reports and finds that, depending on
definitions, research methods, and sources, abuse and neglect rates may be higher or lower for
American Indian and Alaska Native children. (For more information, see Chapter 3, ―Data Issues
regarding abuse and neglect of American Indian/Alaskan Native Children.‖) The available
research indicates considerable variation for abuse rates between tribal communities and urban
environments. Large regional variations in abuse rates, as well as risk and protective factors,
exist and can be expected, since American Indians are a diverse population with many distinct
nations, each with its own culture, language, lifestyle, and traditions (Bohn, 2003; Fox, 2003).
           Even in the absence of reliable prevalence and incidence information, child abuse and
neglect is perceived as a serious problem in Indian Country, for urban Indian communities, and
for American Indian tribes and reservations and Alaska Native villages. Goodluck and Willeto
(2000) found a basic lack of knowledge about who American Indian youth are and what
conditions Indian youth face as they grow up in different tribal and urban environments across the
nation. Nevertheless, as suggested a decade earlier, ―[t]here are few who doubt that child abuse
and neglect in many American Indian communities is a serious social issue in need of careful
examination‖ (DeBruyn, Lujan, & May, 1992). To examine the effects of child abuse and neglect
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and the concerns of American Indian and Alaska Native communities, it is necessary to review
available definitions and consider research on the effects of child abuse and neglect on all
children and, where available, specifically on American Indian and Alaska Native children.


                                  Child Abuse and Neglect Defined
           In practice and in the literature, child abuse and neglect may often have different
definitions. (See Table 2.) The Child Abuse Prevention and Treatment Act (42
U.S.C.A.§5106a.106) identifies a minimum set of acts or behaviors that define physical abuse,
neglect, and sexual abuse for most tribes and states. Each state is required to develop definitions
of child abuse and neglect (Child Welfare League of America [CWLA], 2002). No single, standard,
accepted definitions of child abuse and neglect exist, and some authors have expressed doubt
that exact definitions can be created that will be simultaneously useful in research and in child
welfare practice (Hutchison, 1994). To provide a framework for further review and consideration,
this chapter will begin with definitions of child abuse and neglect common to child welfare
practice. Institutional neglect is defined first here, since it plays an important and unique role for
American Indian and Alaska Native children.


Table 2: Definitions of Child Abuse and Neglect
           Term                         Definition
           Adverse                      Co-occurrence of stressful or traumatic experiences
           childhood                    including caregiver substance abuse, domestic violence,
           experiences                  abuse, neglect, domestic violence, and criminal activity in
                                        the home that combine to have long-term health and
                                        psychological effects for children (Dong, et al., 2004)
           Attachment                   Forming strong emotional ties to adult caregivers. Secure
                                        attachment is defined as using caregivers as a reliable base.
                                        Anxious attachment suggests not trusting caregivers to meet
                                        security needs, and avoidant attachment suggests no
                                        emotional connection to caregivers (Ashford, LeCroy, &
                                        Lortie, 2001).
           Child abuse and              Means, at a minimum, any recent act or failure to act on the
           neglect                      part of a parent or caretaker, that results in death, serious
                                        physical or emotional harm, sexual abuse or exploitation, or
                                        an act or failure to act which presents an imminent risk of
                                        serious harm (The Child Abuse Prevention and Treatment
                                        Act [CAPTA], 42 U.S.C.A.§5106g.111(3))
           Child                        For research purposes, child maltreatment has been defined
           maltreatment                 (1) using a child abuse report to a state agency as an

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                               operational definition, or (2) using narrow and explicit
                               behavioral terms, or (3) using an ecological definition, with
                               family/environmental interactions with social supports or
                               stressors increasing or decreasing the risk of child
                               maltreatment for a family (Aber & Zigler, 1981)
           Child               In contrast to child abuse, which is usually thought of as a
           maltreatment        family-related event, child maltreatment is thought to occur
                               on a variety of levels, individual, family, community
                               environment, and culture or society (Pecora, Whittaker,
                               Maluccio, Barth, & Plotnick, 2000).
           Continuum of        Suggests child abuse and neglect may range from
           abuse               conditions where parents would be assisted by education
                               and support to conditions where authorities must step in to
                               save the life of a child (Kemp, 1998).
           Court appointed     Court appointed special advocates (CASAs) are trained to
           special advocates   gather facts, communicate with court and child welfare
           (CASAs)             agencies, advocate for the best interest of children in court
                               hearings, and track services for children to ensure that
                               children receive appropriate services in a timely manner
                               (Calkins & Millar, 1999; Court Appointed Special Advocates,
                               2000).
           Cumulative abuse    Multiple victimizations, multiple adverse childhood events, or
                               many experiences of child abuse and neglect that cause
                               serious problems for health later in life (Bohn, 2002; Bohn,
                               2003)
           Failure to thrive   Failure to Thrive (FTT) occurs when there is a deceleration
                               in the rate of a child‘s growth based on age and gender
                               specific national norms. Children with FTT as infants are
                               more likely to have continued growth failure, developmental
                               delays, behavioral problems, lower resistance to attack on
                               their immune system, and cognitive and academic deficits
                               (Kerr, Black, & Kirshnakumar, 2000).
           Hostile/Verbally    In their research, Egeland, Sroufe, and Erickson (1983)
           Abusive             define hostile and or verbally abusive behavior in terms of
                               caregivers who ―chronically found fault with their children
                               and criticized them in an extremely harsh fashion. . . . The
                               mothers in this verbal abuse group engaged in constant
                               berating and harassment of their children.‖

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           Institutional    Includes multiple forms of abuse and neglect; children who
           Abuse            are victims of institutional abuse frequently suffer abuse for
                            long periods of time at the hands of workers, volunteers, and
                            other children (Barter, 1999)
           Institutional    Occurs when major societal institutions such as school,
           Maltreatment     legal authorities, and medical care organizations
                            discriminate in ways that prevent the fair and adequate
                            treatment of children. For example, state laws regarding the
                            rights of children in an abuse or neglect court proceeding
                            vary in ways that promote unequal treatment of children
                            (Pecora, Whittaker, Maluccio, Barth, & Plotnick, 2000.
           Mistreatment     In a continuum-of-abuse approach, mistreatment is unfair or
                            unjust treatment of children or poor parenting sometimes
                            failing to meet the immediate needs of children. Most
                            parents mistreat their children at some time during their lives
                            but do not cause them lasting harm. The difficult distinction
                            to make is the point at which mistreatment becomes
                            maltreatment where children are abused and neglected.
           Neglect          Neglect occurs when responsible adults fail to provide for a
                            child‘s basic needs (CWLA, 2003). It includes failure to
                            supervise a child properly leading to physical harm,
                            permitting criminal behavior, abandonment and educational
                            neglect, medical neglect and failure to provide necessary
                            treatment, failure to supervise leading to sexual abuse,
                            emotional neglect (acts or omissions that could cause a
                            child to develop behavioral, cognitive, emotional or mental
                            disorders), and exposure to family violence (Hildyard &
                            Wolfe, 2002).
           Neglect          Egeland, Sroufe, and Erickson (1983) classified neglect in
                            terms of caregivers who were ―irresponsible or incompetent
                            in managing day-to-day child care activities. They failed to
                            provide for the necessary health or physical care of the
                            children and did little to protect them from possible dangers
                            in the home. While these mothers sometimes expressed
                            interest in their children‘s well-being, they lacked the skill,
                            knowledge or understanding to provide consistent adequate
                            care.‖
           Physical abuse   Represents a physical assault, a threat of abuse or an act of

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                             abuse, or a pattern of behavior that attacks a victim‘s
                             physical integrity (Kemp, 1998)
           Physical abuse    Physical abuse may include injuries from punching, beating,
                             kicking, biting, burning, shaking, or otherwise harming a
                             child (CWLA, 2003). Intent to harm a child is not necessary
                             for substantiating allegations of physical abuse. A parent or
                             caregiver may injure a child through horseplay or through
                             the use of physical punishment and still be judged as
                             committing an act of abuse (CWLA, 2003).
           Physically        Egeland et al. (1983) provide one of many definitions of
           abusive           physically abusive behavior used in child welfare research:
                             ―Behaviors of mothers in the physically abusive group
                             ranged from frequent and intense spankings in disciplining
                             their children to unprovoked angry outbursts resulting in
                             serious injuries such as severe cigarette burns. In many
                             cases bruises or cuts were observed or serious injuries were
                             reported in clinic files. In all instances the abuse was
                             potentially physically damaging to the child.‖
           Psychologically   Egeland et al. (1983) define psychologically unavailable as
           unavailable       caregivers as those who ―were unresponsive to their
                             children and, in many cases, passively rejecting of them.
                             These mothers appeared detached and uninvolved with
                             their children, interacting with them only when it was
                             necessary.‖
           Sexual abuse      Sexual abuse includes the employment, use, persuasion,
                             inducement, enticement, or coercion of any child to engage
                             in, or assist any other person to engage in, any sexually
                             explicitly conduct or simulation of such conduct for the
                             purpose of producing a visual depiction of such conduct; or
                             the rape, and in cases of caretaker or inter-familial
                             relationships, statutory rape, molestation, prostitution, or
                             other forms of sexual exploitation of children or incest with
                             children (CAPTA, 42 U.S.C.A.§5106g.111[4]).
           Sexual abuse      Sexual abuse includes fondling a child's genitals,
                             intercourse, incest, rape, sodomy, exhibitionism, and
                             commercial exploitation through prostitution or the
                             production of pornographic materials (CWLA, 2003).
           Withholding of    This is defined as the failure to respond to the infant‘s life-

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        medically                     threatening conditions by providing the treatment (including
        indicated                     appropriate nutrition, hydration, and medication), which, in
        treatment                     the treating physician‘s or physician‘s reasonable medical
                                      judgment, will be most likely to be effective in ameliorating
                                      or correcting all such conditions, except that the term does
                                      not include the failure to provide treatment (other than
                                      appropriate nutrition, hydration, and medication) to an infant
                                      when in the treating physician‘s or physician‘s reasonable
                                      medical judgment—
                                  (A) the infant is chronically and irreversibly comatose;
                                  (B) the provision of such treatment would—
                                           (i)     merely prolong dying;
                                           (ii)    not be effective in ameliorating or correcting all
                                                   of the infant‘s life-threatening conditions;
                                           or
                                  (C) the provision of such treatment would be virtually futile in
                                      terms of the survival of the infant and the treatment itself
                                      under such circumstances would be inhumane (CAPTA, 42
                                      U.S.C.A.§5106g.111[6])


Institutional Abuse and Neglect
        When social institutions, the legal system, the medical care system, and the educational
system do not attempt to meet the needs of all children or set out to harm children or provide
unequal treatment for children, these acts can be defined as institutional abuse and neglect
(Giovannoni, 1985). An example of institutional abuse within the medical care system is
demonstrated by the higher rate of infant mortality for non-White children. Gross disparities in
educational opportunity reflect institutional neglect in education systems, and disparities in
juvenile justice sentencing reflect abuses by the legal system (Giovannoni, 1985). Often, when
describing institutional neglect on a grand scale, authors refer to the 200 years of United States
federal government policies and practices designed to disrupt American Indian and Alaska Native
lifestyles and families (Giovannoni, 1985; Hull, 1982; Pecora, Whittaker, Maluccio, Barth, &
Plotnick, 2000).
        Institutional abuse is also used to describe abuse and neglect occurring in facilities set up
to care for children (Becker & Maier, 1981). Institutionally based abuse and maltreatment include
multiple forms of abuse and neglect. Because day care facilities, schools, group homes, and
other institutions have a special trust to care for children, one instance of abuse can be felt as a
tremendous violation. Unfortunately, children who are victims of abuse within institutions
frequently suffer for long periods of time at the hands of workers, volunteers and other children
(Barter, 1999). Sexual abuse in residential institutions, boarding schools, nursing schools, and
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churches is a particular concern (Gallagher, 2000). Specifically, institutional abuse includes the
sexual abuse of a child by another child or adult who works with the child in a paid or voluntary
capacity in the public or private sector of a residential or non-residential setting (Gallagher, 2000).
Investigations of allegations of institutional abuse are significantly more challenging than
investigations of family abuse allegations, because, often, social workers are investigating actions
of people who are co-workers or professional colleagues (Barter, 1999).


Child Neglect
           Neglect occurs when responsible adults fail to provide for a child's basic needs (CWLA,
2003). Failure to properly supervise a child resulting in injury to the child is neglect. Permitting a
child to commit crimes is neglect. Other areas of neglect include child abandonment, educational
neglect, and failure to provide necessary medical or psychological treatment. Parents who fail to
closely supervise their children, allowing someone within the family or outside the family to
physically or sexually abuse them, are committing another kind of neglect. Neglect often occurs
over a period of time as a chronic condition, rather than, a specific incident, and this means that
neglect situations are often not as easily identified as other forms of abuse (Hildyard & Wolfe,
2002).
    1. Emotional neglect includes acts or omissions that could cause a child to develop
           behavioral, cognitive, emotional, or mental disorders, as well as exposure to family
           violence (Hildyard & Wolfe, 2002). Emotional neglect specifically includes refusal or
           failure to provide for a child's needed psychological care, abusing a spouse or partner in
           the child's presence, or giving a child permission to use drugs or alcohol (CWLA, 2003).
    2. Physical neglect includes kicking a child out of his/her home and refusing to allow a
           runaway to return home (CWLA, 2003). These types of neglect have high prevalence
           rates; for example, childhood emotional neglect was reported by 14.8% and physical
           neglect by 9.9% of a sample of adult members of the Kaiser Health Plan in San Diego
           (Dong et al., 2004).
    3. Educational neglect includes allowing a child to constantly miss school, failing to enroll a
           child of mandatory school age in school, and failing to attend to a child's special
           educational needs (CWLA, 2003).
           A finding of neglect, by definition, includes an assessment of what a child needs to grow
and thrive and the determination that adult caretakers are not providing for those needs. The
assessment of child neglect requires consideration of differences in cultural values and standards
of care. Neglect assessments should also recognize that a failure to provide necessities of life
might be related to poverty (CWLA, 2003).
           Cultural differences in definitions of neglect raise concerns about unnecessary removal of
children from American Indian and Alaska Native homes (Hull, 1982). Hull (1982) gives the
example of a nine-year-old reported as neglected by his teacher, who said that the boy was living
with a non-relative and that his mother and father were not in the community. The intake worker
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recommended court action. The intake worker reported the caretaker was ―noncommunicative
and resistive and apparently failed to see the seriousness of the situation‖ (Hull, 1982). From a
tribal perspective, the situation was not serious because the child was living with caretakers who
had extended family and tribal ties and were seen as legitimate caretakers. Fortunately, in this
situation, the child was not placed (Hull, 1982). Cultural perceptions regarding American Indian or
Alaska Native extended family care systems that are different from European-American
expectations of nuclear family care are reported to be common sources of conflict for neglect
cases in Indian County. The issue of cultural misunderstandings and misinterpretations arose in
focus groups in Minnesota and Wisconsin, during which a similar situation where an Indian
mother did not want to go to the door to talk to a non-Indian social worker because of mistrust of
the social worker was discussed (Red Horse et al., 2000). Unfortunately, in that case, children
were removed from the home because the worker concluded the mother did not care about her
children (Red Horse et al., 2000).


Physical Abuse
           Physical abuse consists of a physical assault, a threat of abuse, or a pattern of behavior
that attacks a victim‘s physical integrity (Kemp, 1998). Physical abuse may include injuries from
punching, beating, kicking, biting, burning, shaking, or otherwise harming a child (CWLA, 2003).
Intent to harm a child is not necessary for substantiating allegations of physical abuse. A parent
or caregiver may injure a child through horseplay or through the use of physical punishment and
still be judged as committing an act of abuse (CWLA, 2003).


Sexual Abuse
           Sexual abuse includes fondling a child's genitals, intercourse, incest, rape, sodomy,
exhibitionism, and commercial exploitation through prostitution or the production of pornographic
materials (CWLA, 2003). National prevalence studies of sexual abuse indicate that approximately
16% of men and 25% to 27% of women experience some type of sexual abuse in their lifetimes
(Dong et al., 2004).


A Continuum of Abuse
           Abuse and neglect may range from conditions where parents would be assisted by
education and support to conditions where authorities must step in to save the life of a child. For
example, the continuum for physical abuse can range from pinching and squeezing to breaking
bones and internal injuries to maiming and murdering (Kemp, 1998). Emotional or psychological
abuse can range from ignoring and demeaning to isolating and insulting to threatening
abandonment and violence (Kemp, 1998). Sexual abuse as a continuum may range from treating
a child as a sexual object to demanding sex and forcing a child to strip to use of weapons to force
sex and injuring a child during sex (Kemp, 1998).

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                                    Effects of Institutional Abuse
           To understand the context of child abuse and neglect for American Indian and Alaska
Native children, it is important to understand that many of the conditions leading to child abuse
and neglect were created by systematic institutional abuses related to the process of moving
tribes to reservations and disastrous attempts to assimilate American Indian and Alaska Native
children.


Confinement to Reservations
           Moving American Indian people onto reservations, which primarily occurred between the
Fort Laramie Treaty of 1851 and 1871, when a ban on further treaties with Indians was enacted,
destroyed American Indian people, children, and families (Nichols, 1998). The destructive impact
of the reservation period was not limited to early years of reservation formation and resistance.
Problems with reservation life and underfunding of federal supports continue to be serious issues
for American Indian people. For example, confinement on the Yakama reservation led to changes
in subsistence diet, child care, and housing that contributed to infant deaths (Trafzer, 1999). The
federal government banned traditional healing practices and Indian agents placed restrictions on
Yakama people's access to traditional sources of food and income without replacing health care
or providing dietary supplements. This resulted in chronic health problems and malnutrition that
affected infants and young children most. The most common age of death for people on the
Yakama reservation from 1914 to 1964 was under one year old (Trafzer, 1999).
           The combined outcome of prohibition of religious ceremonies and forced assimilation
programs have direct connections to troubles in American Indian and Alaska Native communities
today, including social and health problems, poor housing, and injuries (DeBruyn, Chino, Serna,
& Fullerton-Gleason, 2001).


Boarding Schools as System of Neglect and Abuse
           From colonial times, education of American Indian youth was primarily about furthering
colonial settlement (Noriega, 1992). Removing children from American Indian families often
reduced the size of tribes and the population of reservations, leading to attempts to reduce the
size of reservations and tribal lands. At the same time, the boarding schools provided little or no
educational benefit to indigenous people (Noriega, 1992). Central to the boarding school
movement were manual labor schools where American Indian youth were trained on farms and in
domestic tasks from 1834 on. The outplacement system that placed American Indian students
from Indian boarding schools on farms and in homes or businesses for vocational training. These
systems were described in contemporary and historical accounts as sources of slave labor more
than training opportunities (Noriega, 1992; Trennert, 1983).
           After the turn of the century, Estelle Reel, U. S. Superintendent of Indian Education,
shaped a curriculum devoted almost exclusively to vocational training because she believed
Indian children did not have the intellect of White children (Nichols, 1998). For example, ―In 1904
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Reel issued a circular that took three pages of instructions to teach Indian girls how to make a
bed‖ (Nichols, 1998).
           From the 1870s to the 1930s, federal Indian agents sent children from the ages of 5 to 20
to boarding schools. Often, they took the children without consent of parents. Indian agents had
the authority to withhold food and clothing from parents who resisted sending their children away.
The boarding schools operated under harsh conditions: children were not able to use their native
languages or traditional customs, were required to wear uniforms and cut their hair, and were
subjected to military discipline and standards (George, 1997; Hull, 1982).
           Writing in the mid 1970s, Dlugokinski and Kramer (1974) report that from their earliest
history boarding schools were a system intending to "patronize and control" American Indian
children. They found that the boarding school system in the 1970s was little different from earlier
boarding schools. Real student participation in boarding school was discouraged. Counseling
services were not provided. Opportunities to learn from traditional American Indian approaches
were not available, and dropout rates were high (Dlugokinski & Kramer, 1974). Robin,
Rasmussen, and Gonzalez-Santin (1999) found that males from one southwestern tribe who
attended boarding school were more likely to be diagnosed with drug abuse disorders and more
likely to have multiple lifetime psychiatric disorders than males who had not attended boarding
schools.
           To date, concerns about schools funded and supervised by the Bureau of Indian Affairs
(BIA) remain. Attendance in schools managed by the BIA has grown more by 25% since 1987
(Bush, n. d.). The ―No Child Left Behind‖ proposal from President George W. Bush notes that, in
1999, more than 50,000 American Indian and Alaska Native students attended 185 American
Indian or Alaska Native schools with ―physical environments that are among the worst in the
nation.‖
           Another outcome of boarding schools is generations of parents and grandparents who
were subjected to prolonged institutionalization and who do not have positive models of family life
and family discipline (Hull, 1982). These individuals, many of them current parents and
grandparents of American Indian and Alaska Native children, may subject their own children to
the harsh discipline and sexual abuse they endured in boarding school. Further, boarding schools
and relocation efforts have resulted in the destruction of kinship networks that would otherwise
provide support and assistance to families raising children (Cross, 1986; Hull, 1982).




Indian Adoption Project
           As the number of boarding schools began to be reduced, the BIA began to look for
alternative placements for American Indian and Alaska Native children (George, 1997). In 1958,
the Child Welfare League of America (CWLA), in cooperation with the BIA, initiated the Indian
Adoption Project to change the image of American Indian children from ―hard-to-place‖ children to
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adoptable children. Three hundred and ninety-five American Indian children were placed for
adoption with non-Indian families in eastern metropolitan areas through the project. CWLA
participation lent acceptance to the practice of taking American Indian and Alaska Native children
from their homes and villages and sending them to distant European-American communities. The
main effect of the project was to stimulate adoption of Indian children by state and other private
agencies, contributing to 25% to 35% of American Indian children being separated from their
families, with the vast majority going into non-Indian homes (George, 1997).
           In 2001, CWLA President and CEO Shay Bilchik acknowledged and offered ―sincere and
deep regret‖ for CWLA's role in the Indian Adoption Project (Kreisher, 2002). ―No matter how well
intentioned and how squarely in the mainstream this was at the time, it was wrong, it was hurtful,
and it reflected a kind of bias that surfaces feelings of shame,‖ Bilchik said (Kreisher, 2002).


Relocation
           While children were being moved away from reservations to adoptive homes, young
American Indian and Alaska Native adults were being relocated to cities with the promise of
employment opportunities. From the 1950s to the 1960s, the BIA helped 20,000 Indians find off-
reservation jobs, but most of the new work was in seasonal and low-skilled positions (Nichols,
1998). American Indians and Alaska Natives were often given no real training; in most cases,
they were relocated to urban areas and left to fend for themselves. Relocated American Indians
and Alaska Natives were separated from traditional support networks and their extended kinship
groups; many could not cope or survive (Cross, 1986). In Illinois specifically, the relocation
program moved large numbers of people from sites where federally funded Indian social services
were available and placed them where neither the state nor federal government had any legal
obligation to provide comparable services (Mindell, Vidal de Haymes, & Francisco, 2003).
Because tribal affiliation is more easily questioned and overlooked in an urban setting, 21,555 or
more American Indians and Alaska Natives in Chicago face increased challenges to connecting
to services or gaining recognition of their needs. This situation has had a lasting, damaging effect
on the availability of appropriate services for American Indian families in Illinois which has no
Indian land base, tribal court, or tribal-state agreement (Mindell, Vidal de Haymes, & Francisco,
2003).
           These examples of the effects of institutional abuse on American Indian and Alaska
Native children give an overview of policies and practices that helped to create current problems
in Indian Country: ―The removal and separation of generations of children not only has affected
the lives of individuals, but has had tremendous consequences for the cohesion and well-being of
entire tribal communities‖ (Robin, Rasmussen, & Gonzalez-Santin, 2000). As the effects of
abuse and neglect on the individual and family levels are considered, it is important to keep in
mind the devastating effects of institutional abuse on American Indian and Alaska Native
reservations, villages, and communities. At the same time, the strengths of American Indian and

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Alaska Native peoples that helped them to survive these policies and to continue to exist and
thrive and to raise healthy children should not be forgotten.


                            Factors Related to Child Abuse and Neglect
           The current conditions American Indians and Alaska Natives face include conditions
associated with child abuse and neglect. Few direct research links exist to show how these
conditions influence rates of child abuse and neglect for American Indian communities, but the
pervasiveness of poverty, substance abuse, and related factors raise serious concerns.


Poverty and American Indians and Alaska Natives
           Poverty is a pervasive problem for American Indians and Alaska Natives (Willis, Dobrec,
& Bigfoot, 1992). The Indian Health Service (IHS) (1997) reports 38% of Indian children aged 6 to
11 live below the poverty level, more than twice the number for the U.S. all races group (18%).
For Alaskan Natives, IHS (2001) reports that 31% of Alaska Natives under 5 years of age live
below the poverty level, more than three times the number for non-Natives in Alaska (10%).
Alaska Natives aged 5 to 17 are three times more likely to live in poverty than non-Natives in
Alaska, 19% compared to 6%. Willeto (2002) reports that, in 1999, for the 13 states specifically
studied, 31.6% of American Indian/Alaskan Native children lived in poverty with poverty
percentages ranging from 19.8% for Michigan to 44.7% for Montana. Contrary to popular belief,
the majority of tribes have not been raised out of poverty by Indian casinos and gaming
(DeBruyn, Chino, Serna, & Fullerton-Gleason, 2001).


Poverty and Child Abuse and Neglect
           Poverty is so closely related to child abuse and neglect that it almost fades into the
background in research on the topic. Child abuse and neglect is disproportionately reported
among poor families, particularly among the poorest of the poor (Plotnick, 2000). Most parents
living in poverty are not abusive, and being poor is not a justification for removing children from
family homes and placing them in foster care. Being poor is more likely to subject parents to the
scrutiny of welfare and welfare officials. Poverty is associated with numerous stresses and
challenges that may increase the likelihood that caregivers will abuse or neglect children
(Plotnick, 2000). For example, Needell and Barth (1998) compared birth records to records of
infants entering foster care in California between 1989 and1994, and found that infants eventually
placed into foster care were more likely to live in poverty. While research has not sorted out what
combination of factors and influences makes caregivers living in poverty more likely to be abusive
or neglectful, it is clear that policies to reduce poverty have real potential to reduce child abuse
and neglect and the resulting physical and emotional consequences (Plotnick, 2000).


Substance Abuse and Child Abuse and Neglect

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           Native communities have long been grappling with the devastating effects of alcoholism
and substance abuse, with few or no resources to effectively prevent or treat victims of this
disease. The 1994 to 1996 rate of drug-related deaths for American Indians and Alaska Natives
was 65% higher than the rate for all races in the United States (IHS, 2001). Rates for Native
American fetal alcohol syndrome (FAS) and fetal alcohol related conditions (FARC) victims in
some areas of Indian Country are well over the rates for the general population. FAS and FARC
can only occur if alcohol is consumed during pregnancy. The effects, including mental retardation,
organ dysfunction, facial abnormality, and cognitive deficits resulting in behavioral problems, are
irreversible. DeBruyn, Lujan, and May (1992) report that FAS children and other children with
developmental disabilities may be more at risk for abuse and neglect. It should be noted that
while some tribes have very high rates of FAS and FARC, these conditions are no more prevalent
among tribes as a whole than among the general populations of the United States, Sweden, and
France (May & Hymbaugh, 1989). Children with FAS or FARC require comprehensive and
expensive care. They are vulnerable to abuse, and they enter the child welfare system at
alarmingly high rates. The National Indian Child Welfare Association (NICWA) has estimated that
75% to 90% of all Indian child welfare cases in the nation are alcohol-related. Supporting this
estimate were numbers on the Yakama reservation in Washington State, which indicated that
60% of children placed in foster care exhibited the impact of FAS or FARC.
           A consistent theme in abuse and neglect literature for American Indian and Alaska Native
children is the connection between child abuse and substance abuse, particularly alcohol abuse.
Children in American Indian homes may be exposed to drinking earlier in life than those in non-
Indian homes (Willis, Dobrec, & Bigfoot, 1992). Generally high rates of alcoholism and poverty
place child abuse survivors at increased risk for negative long-term psychological effects (Hobfoll
et al., 2002). Negligent caregivers who are Native American reported substance abuse problems,
including problems with alcohol, marijuana, cocaine or crack, or amphetamines and reported
participating in alcohol and substance abuse treatment, more than non-neglecting caregivers
(Nelson, Saunders, & Landsman, 1993).
           Widespread experimentation with alcohol is prevalent among American Indian and
Alaska Native youth. Among young American Indian and Alaska Native people, May (1988)
reported that by 12th grade, 60 to 90% of American Indian and Alaska Native youth report using
alcohol. Beauvais (1998) reported that in 1993, 71% of American Indian and Alaska Native youth
from grades 7 to 12 reported having used alcohol, and 55% reported having been drunk.
According to Beauvais (1998), although about the same percentage of American Indian and
Alaska Native and non-Native youth have tried alcohol, American Indian and Alaska Native youth
appear to engage in heavier drinking with more negative consequences.
           Among American Indian and Alaska Natives who have been arrested, the rate of arrest
for alcohol-related violations (driving under the influence [DUI], liquor law violations, public
drunkenness) is double the national rate. Half of American Indian and Alaska Native inmates in
local jails were consuming alcohol at the time of their offenses, and an estimated 70% of
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American Indian and Alaska Natives in local jails convicted of a violent crime had been drinking
when they committed the offense (U.S. Deptartment of Justice, 1999). In 1994, May reported that
from 1986 to 1988, 17% to 19% of all American Indian and Alaska Native deaths were probably
alcohol-related, compared to the general U.S. average of 4.7%.
             It is important to note, however, ―not all American Indians drink and not all who drink do
so excessively‖ (Gill, Eagle Elk, Liu, & Deitrich, 1997). There are wide variations in rates of
alcohol consumption and alcohol abuse among and within different American Indian and Alaska
Native tribes/nations (Mail & Johnson, 1993). Some tribes and many Indian homes do not expose
their children to alcohol problems (Willis et al., 1992).


                               Other Factors Related to Child Abuse and Neglect
             Research has begun to identify other factors related to child abuse and neglect that are
often consequences of or related to poverty and substance abuse. Needell and Barth (1998)
found that, in addition to being poor, infants entering foster care in California between 1989 and
1994 were twice as likely to have a single parent and low birth weight and twice as likely to have
been born with a birth abnormality. They were eight times more likely to have had no prenatal
care and three times more likely to belong to a large family.
             A study of 77 American Indian families in Iowa and Oregon representing the Sac and Fox
or Mesquakie tribe, the Siletz tribe, and other tribes, compared self-reporting neglecting and non-
neglecting American Indian families (Nelson, Cross, Landsman, & Taylor, 1996). In this study,
identified characteristics of negligent caregivers who are Native Americans included the following:
1) having a child as a teenager; 2) having children born outside of marriage; 3) having children by
more than one father; and 4) having more children than there were non-negligent parents. Few of
the children reported to be neglected had contact with a biological father. Neglecting American
Indian families also reported more stressful life events, histories of substance abuse, arrests and
participation in psychiatric treatment (Nelson et al., 1996). White and Cornely (1981) also report
that children defined as abused and neglected in a 1975 Navajo sample were more likely to come
from families with more children, to have unmarried parents, and to have younger mothers,
although the average age of the younger mothers was 24.4 years. Low birth weight,
developmental disabilities, and chronic physically handicapping conditions were found to be more
prevalent for abused and neglected children than for non-abused children in a 1975 Navajo
                                                                                   58
sample, although these results were not statistically significant                       (White & Cornely, 1981).


Risk Factors for American Indian and Alaska Natives


58
     Statistical significance is one criterion to evaluate data but not always the best criterion. Research with American Indian
and Alaska Native populations is difficult to come by and often lacks power because of small sample sizes. This
information seems to be worth noting since it tends to replicate results in other studies and population groups.


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           The risk factors associated with child abuse and neglect are common risk indicators in
American Indian and Alaska Native communities. Beyond poverty and neglect, common factors
associated with child maltreatment include single parent households, low birth weight infants, lack
prenatal care, the presence of disabilities, and teen parents. For single-parent households,
Willeto (2002) reports about a third to almost half of American Indian/Alaska Native children in 13
states lived in female-headed households where the single caregiver was without stable
employment. Information on low birth weight from Willeto (2002) is more encouraging, with
national rates of low birth weight lower for American Indian/Alaska Native infants than for all other
U.S. Census groups. Still, some states had low birth weights higher for American Indians than for
other groups, and 7.1% of American Indian and Alaska Native infants in 1999 had low birth
weights. Examining 1989 to 1991 data, Baldwin and colleagues (Baldwin et al., 2002) found
infants born in urban areas were 10% more likely to have lower birth weights than infants born in
rural areas. The rates of inadequate prenatal care for American Indian and Alaska Native mothers
in 1989-1991 was almost twice the rate for Whites, with 18.1% of rural pregnancies and 14.4% of
urban pregnancies for American Indians and Alaska Natives occurring without an adequate
pattern of prenatal care (Baldwin et al., 2002). Rates of disability are higher for American Indians
and Alaska Natives than for other U.S. Census groups. Nearly 22% of American Indians and
Alaska Natives are estimated to have a disability (National Council on Disability, 2003). While the
teen birth rate varies across states, with some states having American Indian and Alaska Native
teens with lower birth rates than other populations, the national American Indian/Alaska Native
teen birth rate is high: 41.4 births per 1,000 females, which is well above than the national teen
birth rate for all population groups, 29 births per 1,000 females (Willeto, 2002). In summary, the
available data indicates American Indians and Alaska Natives have significant risk indicators for
most of the risk factors associated with child abuse and neglect.
           This combination of risk factors can lead to dangers for youth. In a study of infant
mortality in Alaska, Gessner, Moore, Hamilton and Muth (2004) did not find Alaska Native infants
at increased risk for death as infants, but they did report significant risk factors for infant mortality
similar to risks for child abuse and neglect. The infant mortality risk factors in Alaska include
multiple gestation births, low birth weight, younger or less educated mothers or fathers, and
maternal substance abuse: ―The picture that emerges is that of an infant—often fragile or
requiring additional care—born to parents without the skills and support systems necessary to
protect their child from harm‖ (Gessner et al., 2004).
           Further understanding of child abuse and neglect for American Indian and Alaska Native
youth requires an overview of the effects of neglect, child abuse, and sex abuse followed by a
consideration of the effects of child mistreatment for different age groups.


Effects of Neglect
           Harm due to neglect is often underemphasized in child welfare practice and in the
literature. Neglect is important and needs to be emphasized because it is the most common
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reported form of problem in Indian child welfare and because the effects of neglect are generally
shown in the research to be even more severe than the effects of abuse. Child neglect is more
prevalent than child physical abuse, and it is nearly as lethal (Nelson, Saunders, & Landsman,
1993).
            National figures for 2002 indicate that 60.5% of child victims experienced neglect, 18.6%
experienced physical abuse, 9.9% were sexually abused, and 6.5% were emotionally or
psychologically maltreated (United States Department of Health and Human Services [USDHHS],
2004). Fox found child protection reports regarding American Indian children from 1995-1999
were 77% neglect; 18% physical abuse; and 6% sexual abuse. (See Chapter 3, ―Data Issues
Regarding Abuse and Neglect of American Indian/Alaskan Native Children.‖) This compared to
rates of 70% neglect, 21% physical abuse, and 10% sexual abuse among White non-Hispanic
children. Clearly, neglect is the most common reason children come to the attention of child
protective services. Additionally, the difference in reporting rates for these categories is
statistically significant (Earle & Cross, 2001). A key difference is in the greater percentage of
reports of neglect for Native children. Again, this may reflect cultural difference in definitions of
neglect (Earle & Cross, 2001) or reporting biases within the child welfare system that leads to
over-reporting for children of color (Connell-Carrick, 2003; Noh Ahn, 1994) .
            National child abuse reports for 2002 for all children indicate more child fatalities were
linked to neglect than abuse, with 37.6% of child fatalities linked to neglect only, 29.9% to
physical abuse only, 28.9% to multiple forms of maltreatment, 3.1% to psychological
maltreatment or other forms of maltreatment only, and 0.4% for sexual abuse (USDHHS, 2004).
            Few studies report specifically on American Indian or Alaska Native children. Available
information tends to support the risk of harm from neglect. For Navajo children in 1975, a greater
percentage of involuntarily neglected children (25%) suffered severe injury than abused children
(19.6%), and the neglected children were more likely to have received a medical referral (White &
Cornely, 1981).


Effects of Physical Abuse
            Aside from the immediate effects of physical abuse—injury, pain, suffering, scarring, and
even death—survivors of child physical abuse tend to suffer long-term effects. Child physical
and/or emotional abuse has a greater impact on emotional distress than does child sexual abuse
(Hobfoll et al., 2002). How children and adults are affected by physical abuse will vary based on
background factors, including family and social support. Long-term effects of physical abuse,
however, have been established by research (Stevenson, 1999). Results of child maltreatment
                                                    59
include lowered IQ, insecure attachment,                 delay in ability to put thoughts into words, and
problems managing anxiety.

59
     Insecure attachment includes anxious or avoidant attachment styles. Secure attachment is observed when infants use
their adult caregiver as a secure base. Anxious-attachment infants, unsure they can rely on caregivers as a secure base,
are clingy, easily upset, not easily soothed by caregivers, and unsure they can rely on caregivers as a secure base.
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Effects of Sexual Abuse
             Common physical, social, and psychological effects of sexual abuse include self-
destructive and aggressive behavior; psychological symptoms of depression; and symptoms
                                                                                                      60
associated with posttraumatic stress disorder, including dissociative episodes;                            difficulty
concentrating; and anxiety reactions (Dexheimer Pharris, Resnick, & Blum, 1997). Other
psychological symptoms include sleep disturbances, low self-esteem, and somatic complaints.
Substance abuse, prostitution, running away, and eating disorders are also associated with
childhood sexual abuse (Dexheimer Pharris, Resnick & Blum, 1997). Women with a history of
child sexual abuse are likely to be revictimized experiencing sexual violence, rape, or domestic
abuse as adults (Kendal-Tackett, 2002).
             In study of a random sample of high school youth in a Midwestern state, 10% of the
American Indian youth in this Midwest study reported extra-family sexual aggression (17%
females, 4.5% males) and 2% reported intrafamily sexual abuse (2.8% female, 1.6% male)
(Lodico, Gruber, & DiClemente, 1996).


Effects of Child Abuse and Neglect by Developmental Level
             Child abuse and neglect are a time sensitive issues, and in order to review abuse and
neglect it is important to consider effects for different age ranges. The age at which child abuse or
neglect occurs is important for many reasons. Younger children are biologically more vulnerable
to harm. Child abuse and neglect early in life may inhibit or alter development, leading to lasting,
irreversible health consequences. Also, child abuse and neglect tend to have different emotional
and psychological consequences at different ages. The following sections address these effects
for various stages of development and recite results from research about child abuse/neglect for
children in the United States as a whole followed by specific reports about abuse/neglect and
American Indian or Alaska Native children.


Newborns, Infants, and Toddlers
             While child welfare workers and researchers recognize that the effects of child
abuse/neglect are most serious for unborn and new born infants, comprehensive research
explaining the causes and effects of neglect specifically on infants and toddlers is lacking and
should be a priority for future efforts (Connell-Carrick, 2003).




Avoidant attachment infants are indifferent to their primary adult caregiver, do not seek contact or attention from
caregivers, and are not distressed when caregivers leave (Ashford, LeCroy, & Lortie, 2001).
60
     ―...disruption in the usually integrated functions of consciousness, memory, identity or perception of the environment‖
(DSM-IV). Usually described as ―going somewhere else‖ to avoid trauma or memory of trauma or abuse, this is different
from normal childhood distraction or short attention spans.
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             Although more babies are killed each year by parents or other caregivers than
             die from car wrecks (in the US for the years 1999 and 2000, fatality rates per
             100,000 infants for unintentional motor vehicle deaths were 4.59 while homicide
             rates for infants were 8.87 [The National Center for Injury Prevention and
             Control, 2003]), US public systems continue to overlook this startling fact as
             evidenced by very small amounts of funding for child abuse research and the
             lack of a federal child abuse initiative. (Herman-Giddens, 2004)


             Gessner et al. (2004) investigated the incidence of infant physical abuse in Alaska from
1994-2000. Based on data comparable across other studies, Alaska seems to have higher rates
of physical abuse than reported in other states or nations. Infants younger than 4 months
accounted for 41% of all reported instances of physical abuse; 34% of the reports were for infants
from 4 to 8 months; and 25% of the episodes were for infants between 8 months and 1 year old.
During this time in Alaska, there were 4.6 instances of physical abuse per 1,000 live births, with
72 episodes of hospitalization or death (1.0 per 1,000 live births) and 68 hospitalizations without
death (0.96 per 1,000 live births) (Gessner et al., 2004).
             Alaska Native mothers were associated with 7.8 cases of physical abuse per 1,000 live
births, while African American, Asian/Pacific Islander, and Caucasian mothers were associated
with 8.3, 1.4, and 2.9 cases of physical abuse per 1,000 live births respectively (Gessner et al.,
2004). While the risk of physical abuse for infants with Alaska Native mothers is high enough to
be concerning, Gessner et al. (2004) report that having an Alaska Native mother was not a
                                                                                   61
statistically significant risk factor in their final regression model.
             Gessner et al. (2004) report that in their study, and in a previous study by Ewigman,
Kivlahan, and Land, both clinicians and Child Protective Services (CPS) did not identify some
infant physical abuse cases involving hospitalization. They suggest that incidents of physical
abuse were underreported and that, if their assessments of intentional injury based on skull or
long-bone fractures were included in abuse rates, the incidence of hospitalization or death from
abuse would increase by 50% for Alaska. This raises the possibility that infant mortality rates may
be more related to child physical abuse than CPS reports alone would indicate and that the infant
deaths may be an indicator of underlying risks for child abuse and neglect.
             Historically, infant mortality rates for American Indians and Alaska Natives have been
high, and, although the numbers are decreasing, they still remain above the national rate (Willeto,
2002). The National Center for Health Statistics (2003) reports national infant mortality rates for
American Indian mothers ranged from 15.2 deaths per 1,000 live births in1983 to 8.3 deaths per
1,000 live births in 2000, with 9.7 deaths per 1,000 live births in 2003, the last year reported. This
remains higher than the infant mortality rates for White mothers, which range from 9.3 deaths


61
     Alaska Native mothers account for 24% of all cases with a risk factor, an odds ratio (95% CI) 1.3 (0.91, 1.8). Since 1 is
included in the confidence interval, the odds ratio is not significant (See Gessner et al [2004] Table 2).
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(1983) to 5.7 deaths (2001) per 1,000 live births, and lower than the mortality rate for Black or
African American mothers, which range from 19.2 deaths (1983) to 13.3 deaths (2001) per 1,000
live births. Again, the national rates may be misleading when applied to different tribal groups and
regions. Infant mortality rates vary between tribes, groups, and regions and fluctuate even within
the same group and region over time (Willeto, 2002).
           The effects of neglect on infants are also a major concern. In a Minnesota study,
neglected children aged 9 to 24 months showed declines in development and were less
enthusiastic, more frustrated, and angrier in problem-solving tasks than other children (Egeland,
Sroufe, & Erickson, 1983). This now classic longitudinal study of the effects of child abuse on
children receiving care in Minneapolis included mothers who were American Indian or Alaska
Native; however the report does not separate results for Native mothers including them with
Hispanic mothers: ―7% were Hispanic or Native American. Fifteen percent of the sample were of
mixed racial background‖ (Egeland, Sroufe, & Erickson, 1983).


Preschool Children
           In the research literature, a history of neglect for preschool children is linked to less
enthusiasm, more frustration, more anger in problem solving tasks, and lower performance on
standardized tests (Hildyard & Wolfe, 2002). Neglect also tends to lower academic achievement
and may cause preschool children to have difficulty putting words together to express their
thoughts. These problems are more severe for neglected children than for physically abused
children, although physical abuse and neglect often overlap (Hildyard & Wolfe, 2002). At 42
months of age, children whose mothers were rated as neglectful appeared to have trouble
dealing with frustrating tasks (Egeland, Sroufe, & Erickson, 1983). They were easily distracted
and impulsive and were the least flexible and creative of all the comparison groups. They avoided
their mothers in teaching tasks instead of looking to their mothers for support, and were rated the
lowest in self-esteem and most likely not to believe they could accomplish difficult tasks
(described as having the lowest sense of agency). These children were very dependent (Egeland,
Sroufe, & Erickson, 1983).
           Medical care, and thus medical neglect, is an important issue for children of preschool
age. One area where treatment is needed, but may not be obtained, is for middle-ear infections
(Otitis media). This is a frequent disease, estimated to occur for as many as 75% of American
Indian children. Ear infections are prevalent from birth to 7 years of age, and contribute to hearing
loss, delays in cognitive and language development, and lowered educational achievement. The
result has been that 13,000 American Indians are in need of hearing aids, and up to 22,000
require otologic surgery (Fleming, Manson, & Bergeisen, 1996).


Children Aged 6 to 17
           Children 6 years of age who experienced an incident of child maltreatment (primarily
neglect but also including physical and sexual abuse) and who had also been diagnosed with
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failure to thrive as infants demonstrated more behavior problems and worse school function and
cognitive performance than children who had neither of these factors (Kerr, Black, &
Krishnakumar, 2000). At almost double the national rate, American Indian children have the
highest rates of injury, mortality, and morbidity. Preventable vehicle injuries result in the largest
proportion of deaths for American Indian youth. Children and adolescents frequently ride without
seat belts: over 40% of adolescents report they rarely or never wear seatbelts (Fleming et al.,
1996). A similar percentage report that they rarely or never wear motorcycle helmets when riding
motorcycles. On one Plains Indian reservation, 61% of a sample of students in grades 8 to 11
reported experiencing one or more traumatic events; the most common event witnessed was a
car accident (37%), followed by death (28%), shooting, beating, and serious injury (7% each)
(Jones, Dauphinais, Sack, & Somervell, 1997).
           In a sample of 320 students in a southwestern state, 6.5% of the total sample were
American Indian women who reported they had been sexually abused (Kenney, Reinholtz, &
Angelini, 1997). For the American Indian women who reported sexual abuse, the percentage who
experienced different forms of sexual abuse and had teenage pregnancies was similar to that of
other ethnic groups. Over 31% of these women who had a teen pregnancy experienced
attempted rape; over 40% had been raped; and 50% of those coerced into sex had a teen
pregnancy (Kenney, Reinholtz, & Angelini, 1997).


Effects Continuing into Adulthood
           Childhood abuse results in increased risk for adult psychiatric disorders, especially
depression and anxiety disorders such as posttraumatic stress disorder (PTSD) (Kendal-Tackett,
2002; Stevenson, 1999). Adult survivors of abuse are at increased risk of abusing alcohol and
drugs (Kendal-Tackett, 2002).
           Childhood physical abuse is also linked to later adult health problems; research suggests
increased sickness and more doctor visits, more symptoms of illness, more surgery, one or more
chronic pain symptoms, and obesity (Kendal-Tackett, 2002). Adult survivors of child abuse often
report sleep disturbances (Kendal-Tackett, 2002). For female military veterans seen in the
Veterans Administration‘s San Diego clinics, including Native Americans (n = 4, 1% of the
sample), experiencing physical abuse was related to less exercise, potential for problems with
alcohol, smoking during pregnancy, and younger ages of first pregnancy and first consensual
intercourse (Rodgers et al., 2004).
           For female military veterans seen in the Veteran Administration‘s San Diego clinics,
including Native Americans (n = 4, 1% of the sample), experiencing sexual abuse was related to
current tobacco use, potential for problems with alcohol, having driven while intoxicated, and
younger ages of first pregnancy and first consensual intercourse (Rodgers et al., 2004).
           Robin, et al. (1999) found that women from a southwestern tribe who experienced sexual
abuse as children had approximately four times the likelihood of multiple psychiatric disorders
than women who were not abused and not placed in foster care.
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Cumulative Abuse
           Dong et al. (2004) report that emotional, physical, and sexual abuse; emotional and
physical neglect; parental separation or divorce; caregiver substance abuse; caregiver mental
illness; domestic violence; and criminal activity in the home as adverse conditions that tend to be
interrelated in the lives of children. If an adult reports one of these adverse childhood
experiences, he or she were extremely likely to report having two or four of the other harmful
experiences (Dong et al., 2004). For female military veterans, including Native Americans (n = 4,
1% of the sample), seen in the VA San Diego clinics, women experiencing four or more types of
childhood maltreatment were 4.42 times more likely to have potential problems with alcohol; 3.63
times more likely to report driving while intoxicated; 2.67 times more likely to have had a history of
risky sexual behavior; and 1.66 times more likely to use tobacco than women experiencing no
childhood abuse or only one type of maltreatment (Rodgers et al., 2004).
           According to Bohn (2002), ―Multiple abuse exerts a cumulative or dose-related effect on
women's health.‖ Children who experience multiple adverse childhood events are at increased
risk for alcoholism, drug abuse, depression, suicide attempts, and smoking (Bohn, 2003). Multiple
victimization places American Indian and Alaska Native women at increased risk for health
problems (Bohn, 2003). Women who experience either sexual abuse or physical and emotional
abuse are at increased risk for contracting the human immunodeficiency virus (HIV), but
experiences of physical and emotional abuse seem to play a stronger role in increasing HIV risk
than sexual abuse (Hobfoll et al., 2002). Bohn (1998) reports results of a study of 30 pregnant
urban American Indian women in which 60% were involved with a physically abusive partner,
27% experienced child abuse as a child, 40% experienced childhood sexual abuse, and 47%
experienced either physical or sexual abuse as a child. The majority had two or more abusive
partners as adults, and 17% reported experiencing sexual abuse as adults. Cumulative lifetime
abuses or abuse events for these American Indian women were significantly related to substance
abuse and suicide attempts.


Key Issues Related to the Provision of Services, Funding, and Policy Development
           Given the terrible impact of child abuse and neglect and their lasting effects, support for
tribal programs and urban Indian programs is crucial. Provision of services through culturally
based programs is vital. Coordination of often overlapping jurisdictions between tribes, counties,
states, and federal agencies presents a unique policy practice challenge. The impact of welfare
reform on Indian Country must be understood, as well as the need for funding to reduce poverty.
For policy development the major policy legislation affecting child abuse and neglect is the Child
Abuse Prevention and Treatment Act CAPTA (P. L. 93-247); therefore, expanding tribal and
urban Indian access to CAPTA programs is stressed.


Culturally Appropriate Programs
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           According to DeBruyn et al., ―Tribal members want culturally appropriate child
maltreatment intervention programs for their respective communities‖ (2001). Miller and Pylypa
(1995) explain the value of having someone on staff who is from the community being served.
Understanding family relationships and social networks is crucial for indigenous helpers, because
in the Coast Salish community as in other Indian communities, the context of an individual is
defined by his or her social connections, ancestry, and their family network. This tends to make
an Indian child welfare worker ―one of us‖ or ―one of them.‖
           The generation of American Indian and Alaska Native children growing up today and
those just being born are more likely to receive the strengths and resiliency of traditional ways of
life and beliefs from their elders and families than were past generations (Fleming, 1996). Tribes
and Native communities can support youth through inclusion in the community; connection with
family, kin, and friends; and including youth in spiritual beliefs and practices (Fleming, 1996).
           Providing these supports for American Indian youth is important to reduce the effects of
child abuse. Protective factors that mediate the effects of sexual abuse reported in the literature
include the following: 1) attachment; 2) degree of support and caring from nonabusive parents; 3)
presence of a caring adult; 4) family cohesion; and 5) a child's temperament, intelligence,
hardiness, positive body image, sense of spirituality, sense of mastery of skills or academic
success, and identification with a group (Dexheimer Pharris et al., 1997).
           For example, American Indian women who were involved in communal culture reported
more of a boost from their social support than their sense of individual mastery (Hobfoll et al.,
2002). Their sense of being able to successfully affect their environments and their satisfaction
with available social supports were factors related to better emotional outcomes and lower
Acquired Immunodeficiency Syndrome (AIDS) risks for women. Tribal healing ceremonies are
beneficial for children harmed by sexual abuse (Willis, Dobrec, & Bigfoot, 1992). Willis et al.
(1992) caution those using cultural healers to recognize their protocol, including the fact that
specific details of the abuse do not need to be provided to the healers, especially for public
ceremonies.
           These cultural guidelines support protective factors that have been shown to decrease
suicide attempts for sexually abused American Indian youth. Research suggests that connections
with tribal leaders and involvement in traditional activities play a potential protective role of for
American Indian youth who are at risk of suicide (Dexheimer Pharris et al., 1997). Protective
factors reducing the risk of suicide attempts for American Indian females who were sexually
abused included having family members who paid attention to them, having defined expectations
from their parents, having caring parents, and having positive feelings about school. Protective
factors decreasing suicide attempts for sexually abused American Indian males were positive
feelings about school, their family‘s caring about their feelings, and being involved in traditional
activities.
           Casey Family Programs and the Yakama Nation developed the Native American Kinship
Care Program, which is an example of a cultural network to provide assistance to deal with the
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effects of child maltreatment (Yakima Division of Casey Family Programs, 2000). This program
strives to build a collaborative network of services and to prevent non-kinship, out-of-home
placements, including adoption, of American Indian children. Services include crisis intervention,
case management, respite care, support groups, family group conferences, legal assistance,
educational assistance, transportation, and referrals. The program supports tribal and cultural
teachings and teaches tribal and cultural sensitivity to service providers.


Overlapping Jurisdictions: State, Tribal, and Local Relationships
           The Native American Kinship program is also an example of a program designed to
overcome service coordination barriers. Indian child welfare service provision is divided between
the BIA, tribal governments under the Indian Self-Determination and Education Assistance Act
(P.L. 93-638), the IHS, and local and state governments (Willis et al., 1992). Overlapping
responsibilities between all of these agencies, and often with justice departments involved in the
criminal prosecution of child abuse or neglect, mean jurisdictional issues remain a constant issue
for American Indian and Alaska Native communities that continue to struggle with the U.S.
government over sovereignty rights and trust responsibilities (DeBruyn et al., 2001). While tribal
courts may have good relationships with state courts, this is not universal. Without extensive
efforts for collaboration and coordination, divided agency responsibilities can result in gaps in
services that leave families and children undeserved and unprotected (Willis, et al., 1992).
           Tribal members report that services offered by states are too often geared toward
mainstream ideas of family and community and are located long distances from tribal members‘
homes (National Indian Child Welfare Association, 2004). For states, the overlay of federal Indian
law and tribal law often seems confusing and out of step with state practices, raising questions
about how to proceed. An additional concern for states is the question of liability for services to
tribal members, especially on tribal lands. For both parties, budgetary concerns are important,
and sometimes create a tug-of-war over who will pay for services.
           Jurisdictional conflicts between tribes and states are often a precipitating factor for
service coordination problems, resulting in the child being further victimized by child welfare
systems that don‘t communicate well with one another. For tribes, getting access to state services
can be very challenging and frustrating when systems don‘t understand their community or needs
(NICWA, 2004).


Impact of Welfare Reform
           Welfare reform legislation was passed ―[W]ithout careful analysis on its potential impact
on child welfare or the ways in which its policy objective of moving parents into the workforce may
conflict with the child welfare system‘s objectives of protecting children and preserving families‖
(McGowan & Walsh, 2000). The Personal Responsibility and Work Opportunity Reconciliation Act
(PRWORA) of 1996 emphasizes moving people from welfare to work. PRWORA gives states
and tribal governments considerable flexibility to establish Targeted Assistance for Needy
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Families (TANF) programs to provide temporary assistance and work programs. While TANF
programs have potential for positive effects, social workers are cautioned of the need to ―maintain
ongoing vigilance to prevent even further erosion to the 'safety net'‖ (Devore & Schlesinger,
1999).
           This erosion of the safety net, potentially increasing the number of children in poverty and
therefore the risk of child abuse and neglect, is a real concern in Indian Country.


           Our primary conclusion is that the combination and concentration of obstacles to
           welfare reform on Indian reservations means that current welfare policies are
           bound to fail in much of Indian Country. We are particularly concerned by the
           lack of attention at the policy level to the last of the three policy areas outlined in
           the preceding paragraph: employment. Current policy largely ignores economic
           growth as a welfare reform strategy for Indian Country. Even if the funding
           problems with TANF and its related training programs can be solved—and these
           are substantial—and even if federal policy were to provide Indian nations with
           more flexibility and control over the design and implementation of reform—and
           we believe it should—a sobering fact remains: without an economic growth
           strategy—that is, without jobs—welfare reform in Indian Country will fail. Either it
           will drive significant numbers of tribal citizens further into poverty as they lose
           support and find no alternatives, or it will force large numbers of them to leave
           their homelands in search of employment, undermining tribal communities and
           embittering Indian peoples. Neither outcome is acceptable to Indian nations;
           neither outcome should be acceptable to the United States. (Brown, Whitaker,
           Springwater, Cornell, Jorgensen, Hale, & Nagle, 2001)


           For further information about tribal governments and welfare reform, an excellent
resource is Welfare, Work and American Indians: The Impact of Welfare Reform: A Report to the
National Congress of American Indians (Brown et al., 2001). This document provides a
comprehensive example of policy analysis covering multiple existing federal welfare reform
programs available and not available to Indian tribes. Areas where tribes could better adapt
programs to fit tribal values and cultures are explained. Welfare reform policies and their impacts
on tribes and states are described, and the implications for Indian people and tribal and state
governments are provided. Important to child welfare considerations are the lack of available child
care resources and trained child care providers, the lack of jobs on reservations and rural areas,
and the emphasis of most tribal TANF programs on ―education first‖ rather than ―work first‖
(Brown et al., 2001).


Tribal Access to CAPTA

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           The Child Abuse Prevention and Treatment Act (CAPTA) (P.L. 93-247) represents
federal recognition of the social problem of child abuse and neglect. As described earlier, while
states and tribes must define child abuse and neglect in their own laws, CAPTA sets minimum
federal standards for definitions of child abuse and neglect. CAPTA also encourages research
and supports professional training (Pecora et al., 2000). The Keeping Children and Families Safe
Act of 2003 (P.L. 108-36) is the most recent revision to CAPTA, replacing Community-Based
Family Resource; Keeping Children and Families Safe adds cross-training of child protective
services workers on domestic violence and substance abuse issues among other new training
initiatives.
           Tribal and IHS programs operate with severely limited resources and face shortages of
staff as well as limited and unpredictable financial support (DeBruyn et al., 2001). CAPTA is an
example of federal legislation drafted without direct inclusion of American Indian and Alaska
Native communities in opportunities for federal funding. This may be because of a lack of
awareness of the unique status of tribes and a belief that states will take care of the needs of
tribes within their borders. Even to the extent federal funding is available under CAPTA, tribal
members with long histories of mistrust of the federal government may be reluctant to apply for or
accept funding. Federal officials must make consistent and concentrated efforts to overcome
barriers of mistrust.
           CAPTA represents a potential source of desperately needed funding for Indian child
welfare programs. While tribes are eligible for grants for training and programs supports
authorized by CAPTA, a recent search of the Children‘s Bureau website of grants awarded did
not find grants provided to tribal programs.
           CAPTA could be more responsive to the needs of American Indian and Alaska Native
children if amended to bolster child abuse and neglect prevention. Reserving funding from
existing CAPTA grant programs for distribution to approved tribal and urban Indian applicants for
child abuse and neglect prevention and treatment services would be a good start. Additional
beneficial changes would be to 1) establish a tribal trust fund for prevention efforts in Indian
Country, 2) establish a tribal child welfare resource center, similar to those established for states,
3) to provide training and technical assistance to tribal child welfare programs, and 4) transfer
control over child abuse and neglect prevention and treatment grant programs established under
the Indian Child Protection and Family Violence Prevention Act (P. L. 101-630) from CAPTA to
the Department of Health and Human Services (Cross, 2002).


Conclusion
           Even without a research foundation to provide reliable prevalence and incidence
information about child abuse and neglect, child maltreatment is perceived as a serious problem
in Indian Country. Risk factors including poverty, substance abuse, single parent households,
low-birth-weight infants, children who lack prenatal care, children with disabilities, and children of
teen parents are usually higher for American Indians and Alaska Natives than for other U.S.
R13227-0                                         135
Census groups. The prevalence of these risk factors is related to the history of institutional abuse
of American Indian and Alaska Native peoples, highlighted by conditions on reservations, the
boarding school movement, the Indian Adoption Project, and relocation of reservation peoples to
urban areas without proper preparation or support.
           The strengths of American Indian and Alaska Native communities and families have been
cultural and spiritual traditions, which provide protective factors enabling children and families to
either avoid child abuse and neglect or recover from its adverse effects. Many of the cultural
programs offered by reservations, villages, and urban Indian communities lack necessary
resources to assist all children in need. A considerable investment is needed from federal, state,
and tribal officials to restore family functioning, to prevent further abuse and neglect, and to repair
damage done to American Indian and Alaska Native children and families.




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                      Child Abuse and Neglect Prevention in Indian Country
                                 Terry L. Cross, MSW, ACSW, LCSW


                                                Abstract
           This chapter examines child abuse prevention efforts by Indian tribes and suggests that
policymakers prioritize prevention in Indian communities. A review of the results of a 1998 study
of tribal child abuse prevention programs in combination with a 5-year follow-up study reveals that
organized and comprehensive prevention of child maltreatment in Indian Country is rare.
Because no funding was available, almost all child abuse prevention efforts were carried out by
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people working in other child-related programs. Six primary prevention approaches were
employed in ad hoc combinations with cultural adaptations: public awareness, parent support,
child resistance education, intervention to reduce problem behavior, social risk reduction, and
cultural strengths. An analysis of the promising practices among these approaches showed that
all programs utilized activities that revived or reinforced cultural strengths and child-rearing
practices that naturally prevented child abuse and neglect, and that parent support, public
awareness, and cultural strengths approaches were being delivered side by side with intervention
services. Such efforts were neither funded nor planned specifically as child abuse prevention
programs and received no systematic evaluation due to inadequate resources. Unevaluated
prevention efforts that had no reliable source of funding and relied on the personal resources of
tribal staff proved unsustainable. Expanded access to more reliable sources of funding for
prevention efforts in Indian Country are needed. Indian-specific materials, training, and technical
assistance on prevention and program evaluation, as well as culturally-based prevention methods
are also needed.




                                             Introduction
           Prevention of child abuse and neglect in Indian Country is one of the least supported
child welfare activities but has one of the highest potential benefits for Indian children, families,
and tribal communities. Indian communities have characteristics that help protect children from
abuse or neglect. Historically, tribes have had customs and traditions for regulating civil matters
such as child custody. Tribal elders acted as judges; traditional chiefs governed as the protectors
of child well-being. Clans, bands, societies, and kinship systems functioned as social service
providers. The teachings of the past and natural prevention support systems continue to facilitate
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prevention today. When extended families are intact, new parents can receive the support they
need. In tribal communities, almost everyone knows everyone else. These networks of people
can often help identify and support child abuse victims and protect children from perpetrators.
When communities are intact and aware, neighbors, friends, and family can provide checks and
balances against unacceptable behavior. Unfortunately, in recent decades, the risk factors for
child abuse and neglect have begun to overwhelm the natural protective factors, because the
cultural and formal prevention efforts are rare, under-funded, and difficult to sustain.
           This chapter examines child abuse prevention in Indian tribes and suggests that
policymakers raise the priority for such activities. The chapter begins with a review of child abuse
and neglect risk indicators and a discussion of the traditional cultural factors that support and
facilitate prevention. The next section provides a discussion of community-based prevention and
summarizes the results of a 1998 study of eleven tribal child abuse prevention programs as well
as a 5-year follow-up to that study. The third section of the chapter provides a discussion of
prevention approaches, as reported in the 1998 study, that are widely used in the field and have
been used in Indian Country. This is followed by a discussion of evaluation and research issues.
Finally, the chapter considers barriers and strategies for change, including a discussion of
potential and current funding sources for prevention efforts.


Risk of Child Maltreatment in Indian Country
           Risk factors for child abuse and neglect have been widely researched in the general
population, but little of this research is specific to Indian populations. Nonetheless, current
studies have demonstrated correlations between increased risk for child abuse and neglect when
families live in poverty, households have only one parent, alcohol and substance abuse are
present, families are geographically isolated, and domestic violence occurs. We know from the
U.S. Census and published research that disproportionately large numbers of Indian children
experience factors that increase risk for child abuse and neglect and that these risk factors are
prevalent in most tribal communities. Forty-five percent of Indian mothers have their first child
when they are under the age of 20, compared to 24% for mothers of all races in the United States
(Indian Health Service, 1997). Thirty-eight percent of Indian children ages 6 to 11 live below the
poverty level, more than twice the number of the national average (18%) in the United States
(Indian Health Service, 1997). The U.S. Bureau of the Census reported in 1993 that 34.2% of
Indian households in the 25 largest Indian tribes were headed by a single parent. Earle and
Cross (2001) found in their examination of existing data that there was more violence among
Indian families, more abuse related to alcohol, and higher rates of public assistance in Indian
families compared to White families.
           In an examination of child neglect, Nelson et al. (1994) found that Indian communities
experience several risk factors that are associated with child abuse and neglect, including
alcoholism, families with low incomes, families with four or more children, and families that are
geographically isolated. Native Americans‘ high rates of behavioral health and substance abuse
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problems are well documented (Berlin, 1986; Deserly & Cross, 1996; McShane, 1987). Gregg
Bourland of the Cheyenne River Sioux Tribe described the problem of neglect and abuse as
intertwined with substance abuse, and added cultural neglect as an additional form of neglect
among Indian families (Bourland, 1995).
           Based on training needs assessments and focus group research, the National Indian
Child Welfare Association (1994) has estimated that between 75% and 90% of all Indian child
welfare cases in the nation are substance abuse related. Rates for Native American fetal alcohol
syndrome (FAS) and fetal alcohol-related condition (FARC) victims in some areas are well over
the rates for the general population. These children require comprehensive and expensive care.
They are vulnerable to abuse, and they enter the child welfare system at alarmingly high rates.
           Child neglect is serious, large scale, and persistent among Indian populations in the
United States. NICWA estimates that neglect endangers American Indian children over four
times more often than physical abuse and far more often results in fatalities. Indian children die
almost three times more often of accidents than other children. In fact, according to the Indian
Health Service (1990), the leading cause of death for Indian children under the age of 14 is
accidents and the majority of these accidents are alcohol-related.
           In a review of the literature, Paget, Phillip, and Abramczyk (1992) cited studies linking
alcohol abuse as a consistent correlate with child neglect in Indian families. While several
authors have speculated about the influence of boarding schools, cultural identification, or
extended family supports, none of these ideas have been tested (Nelson et al., 1994; Cross,
1986; Hull, 1982).
           Findings in a study by Nelson et al. (1994) confirmed that substance abuse and poverty
were the two key contributing factors to child neglect in a sample of 77 Indian families.
Surprisingly, family functioning, parenting skills, and educational level were not correlated with
neglect, while trouble with the law, having more children, and multiple problems (e.g., lack of
transportation, inadequate housing, broken appliances, etc.) were found to contribute to neglect.
These findings suggest that the families in the study knew how to care for their children, but those
who became overwhelmed with multiple problems, especially substance abuse, were at risk of
neglecting their children.
           Special stress or dysfunction, alcoholism, and/or any type of violence place American
Indian children at risk of sexual abuse. Also, geographically or socially isolated families are at
higher risk for child sexual abuse. Unrecognized and untreated child victims are at a high risk of
growing up to become dysfunctional adults, and the repeated risk of sexual abuse greatly
increases, generation after generation, within the community. The victims themselves become
used to being victimized and see victimization as a fact of life.
           Overall, the impact of child maltreatment in many Indian communities has been
devastating. It has disrupted extended family support networks, broken up families through
placements outside the community, and contributed to the cycle of violence and substance abuse
that continues to hamper positive development.
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Traditional and Cultural Factors that Facilitate Prevention
           Along with factors that heighten the risk of child abuse and neglect, Indian communities
have characteristics that help protect against child maltreatment. Traditional child-rearing
practices promote bonding and protect the child emotionally, physically, and spiritually (NICWA,
1987). Historically, tribes have had customs and traditions for regulating civil matters such as
child custody. Most tribes had no word in their languages for ―orphan,‖ because children in need
were the responsibility of everyone in the tribe. Indian peoples did have words for ―adoption,‖
however, and had mechanisms for assuming responsibility for children in need.
           The teachings of the past and the natural prevention support systems continue to
facilitate prevention today. Spiritual teachings still shape child-rearing practices by imparting the
knowledge that children are sacred gifts from the Creator who must be treated with kindness.
           When extended families are intact, new parents can receive a lot of support. Many
Indian families are large, and many people still live in close, interdependent, extended family
systems in most reservation communities. Even when Indian families move to the city, the
cultural norms of extended family life greatly influence help-seeking behavior, with people turning
to their relatives first for help. These protective factors appear with varying degrees of frequency
today in Indian families (Nelson et al., 1994).


                                   Community-Based Prevention
           Prevent Child Abuse America (PCAA), formerly known as the National Committee to
Prevent Child Abuse, led the nation during the 1980s and 1990s in the development of new and
diverse methods for prevention of child abuse and neglect. PCAA‘s approach was to inform
every person that child abuse and neglect are real and can be prevented. Furthermore, every
person who wants to prevent child abuse can and should have the resources and knowledge
necessary to do so. This model transfers well across cultures as can be seen in the
characteristics of the tribally based prevention efforts detailed in the following sections. Without
resources, however, few Indian communities have been able to implement prevention services.
           From the late 1970s through the 1980s the federal government‘s National Center on
Child Abuse and Neglect occasionally funded brief discretionary grant projects that focused on
child abuse prevention in Indian communities. One such grant, to a Tulsa-based Indian health
program, produced valuable educational materials. A grant to the Navajo Nation produced similar
materials. The National Tribal Court Judges Association was funded by the Justice Department
to produce awareness-building materials. The National Indian Child Welfare Association (then
the Northwest Indian Child Welfare Association) was funded twice to create child abuse
awareness campaigns. For the past 10 years, NICWA has mailed child abuse prevention
packets to tribes annually. These mailings have provided both materials and guidance during
Child Abuse Prevention Month (April).

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Characteristics of Eleven American Indian Prevention Programs
           In 1998 the National Indian Child Welfare Association (NICWA), in cooperation with the
National Clearinghouse on Child Abuse and Neglect, conducted a survey (Cross & Ollgaard,
1999) to collect information on the extent and character of child abuse and neglect prevention
efforts in Indian Country. As mentioned earlier, each year since 1995 NICWA has disseminated a
child abuse prevention packet to all tribes in the nation during April, which is designated as Child
Abuse Prevention Month. To learn how the packets were being used and what other prevention
efforts might exist, NICWA conducted a survey of all 563 federally recognized tribes. While over
50 tribes responded that they had used NICWA materials during Child Abuse Prevention Month,
only 11 tribes in the 1998 survey met the criteria of having on-going prevention programming.
           Perhaps most importantly, the report examined the types of prevention activities being
utilized by the 11 Indian communities that participated. While not all-inclusive, these programs
exemplified promising practices and demonstrated several culturally based child abuse
prevention approaches for American Indian communities. The programs reviewed in the report
were holistic, community based, and turned to culture as a primary source of strength. In most of
the programs studied, caring, informed, and active individuals helped to find and build on
solutions and resources already available in their communities. Local leaders, program people,
and advocates created and implemented their own solutions to local problems based on models
they had learned about from national organizations or at workshops or conferences. Some of the
models, such as those provided by NICWA, were already culturally based. Most often, program
leaders adapted mainstream resources to their local and cultural needs.
           The 1998 study found that because no specific funding was available, almost all child
abuse prevention efforts in Indian Country at the time were carried out by people working in other
child- related programs and were neither funded nor planned specifically as child abuse
prevention programs. Most approaches were the result of professionals and paraprofessionals
recognizing the need for prevention-based activities and incorporating those activities into other
programs to the best of their ability. Others were incorporating prevention activities because
performance standards require it (as with Head Start), policies require it (as with Bureau of Indian
Affairs schools), or because the awareness of tribal leadership fostered it. Tribal child abuse and
neglect prevention activities described in the 1998 study were sometimes conducted by projects
designed primarily to intervene in or prevent other social problems such as substance abuse or
domestic violence. In each case the development of prevention efforts relied heavily on the
energy of individuals that went beyond the normal responsibility of their jobs, many putting in
volunteer hours to conduct prevention activities.


American Indian Prevention Programs Five Years Later
           For the purpose of this chapter, NICWA conducted follow-up interviews with 9 of the 11
programs that participated in the 1998 survey. Two others were not available because the
programs had ceased and no one who knew about earlier work could be located. Each of the
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tribes was contacted in late 2003 or early 2004 and given the option of participation in the follow-
up. Six of the 11 tribes included in the 1998 study reported that they had been able to sustain
their effort. The finding in the 1998 study, that prevention activities depended heavily on
individuals who were willing to add these activities to their regular duties, was born out in the
follow-up and the implications of the earlier finding became clear. Of the 9 programs responding
to the follow-up only 1 director remained in their position. One tribe reported that awareness of
child abuse and willingness to report it is both their number one challenge and their number one
priority for prevention. The instability of funding and the lack of resources were mentioned by
several of the tribes as a real concern to all the tribal programs. As budgets have gotten tighter,
as problems continue to worsen, and as staff turnover occurs, prevention efforts have diminished
or been lost. Only one program felt they had been able to expand their prevention program. This
does not mean that prevention efforts have not developed in other communities, but it is beyond
the scope of this report to initiate a new national survey.
           The implications of the follow-up findings are discouraging. Prevention efforts that rely on
the energy and personal resources of tribal staff picking up these duties above and beyond their
job descriptions and which have no reliable source of funding are not sustainable. As the
incidence of child abuse continues to escalate at an alarming rate in Indian Country, prevention
efforts that have existed in the past have ceased. Without stable resources and staff time
devoted to these efforts, prevention of child abuse in Indian Country will be grossly inadequate.


Prevention Approaches
           Few solutions imposed from outside have ever been effective in Indian communities. It
appears that what can be brought to a community is help with problem-solving skills and
strategies, facilitation of a community development process, and sharing of technical information
or knowledge to show people how to achieve their own goals. As seen in the 5-year follow-up,
resources are essential. When tribes have the appropriate resources, they are able to develop
programs that are responsive to community needs. However, without resources such efforts are
scarce, and those that exist are not sustainable.
           Currently, child abuse prevention efforts are extremely rare in Indian Country. In order to
examine what services are possible, one must look back six years to examine what prevention
efforts were being made by tribal communities. The 1998 study showed that prevention efforts
followed six general tracks, which were, for the most part, consistent with prevention efforts
across the United States and other developed countries. Many of the 1998 tribal prevention
programs were cultural adaptations of mainstream models. One exception to this is an approach
in which the goal is to restore cultural teachings, values, and norms, thus resulting in child abuse
risk reductions. We have labeled this approach the cultural strengths model. The few tribes
engaged in prevention activities in 1998 appeared to be using multiple approaches in their
communities on an ad hoc basis. Most were using several approaches at the same time or were

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operating prevention services in other arenas (e.g. substance abuse, domestic violence, etc.) that
also served to reduce child abuse. These approaches include the following:


          public awareness
          parent support
          child resistance education (safe touch, stranger danger, etc.)
          intervention to reduce problem behavior
          social risk reduction
          cultural strengths


           For the purposes of this report, these approaches are examined for the possibilities they
can teach us. Note that at the time of the study only 1% of the tribes in the country had ongoing
prevention efforts—reaching less than half of 1% of the Indian children and families in the nation.
Most of these efforts are now gone. The discussion below represents those promising practices
that were lost along the way.


Public Awareness
           All 11 programs in the 1998 study conducted activities to inform the general public that
child abuse and neglect are a problem but that there is help available. These activities included
information dissemination and public awareness campaigns using posters, public service
announcements, media coverage, booklets, brochures and pamphlets, as well as issue papers or
briefing papers. These activities also included community action models such as conferences,
marches, events, resolutions and proclamations, and even the passage of tribal codes. During
Child Abuse Prevention Month in April 1999, 79 tribes requested prevention materials from the
National Indian Child Welfare Association in response to a postcard announcing the availability of
such materials. Most of the materials were public awareness oriented. Based on the responses
to our study and other data gathered in the course of the project, it appears that public awareness
played a key role in child abuse prevention activities among the tribes. All programs reported that
materials used are culturally specific and that they have been obtained from national Indian
organizations or adapted to address the needs of the local community.


Parent Support
           All 11 programs in the 1998 study reported activities that assisted parents in developing
knowledge, skills and social supports aimed at reducing the risk for abuse or neglect. Such
activities include first-time parent contacts, home visits and parenting classes, books, curricula
and/or groups. Many tribes use culturally specific parenting curricula such as Cherish the
Children, from the Minnesota Indian Women‘s Resource Center, or Positive Indian Parenting,
from NICWA. Others use mainstream curricula, which they adapt for their local culture. Parent
support also means parent involvement in these programs, with parents often training other
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parents. In the process of the 1998 study, NICWA learned of a family resource center that
specializes in parent support at the Northern Arapaho Tribe of the Wind River Reservation in
Wyoming and a family advocacy and parent support program operated by the Tulalip Tribes of
Washington. The Tulalip project integrates services at the tribal pre-school for early identification
and parent support. Currently, the Cook Inlet Tribal Council, the Southern California Indian
Center, and the Indian Township Passamaquoddy Tribe operate community- based family
resource centers funded under discretionary grants from the Children‘s Bureau. Parent support is
clearly another cornerstone in the configuration of tribal prevention services.


Child Resistance Education
            Six of the 11 reporting programs participating in the 1998 study conducted activities that
targeted children and strengthened their resistance to abuse. These activities included
prevention education for potential victims as well as the professionals who serve them. Primarily
targeted toward child sexual abuse, these activities were designed to prepare children to avoid
being abused. In addition, the activities could help the professionals who work with children each
day to educate them or to support the at-risk child. One such venue for this type of approach is
tribal preschools, and specifically Head Start programs.
           Currently, there are more than 22,000 Native American children between the ages of 3
and 5 being served by Head Start programs across the United States. These Head Start services
originate from Indian Head Start schools on or near 173 reservations in 26 states (Three Feathers
Associates, 1988). Head Start performance standards require all staff to receive training on child
abuse and neglect, and many programs have a child maltreatment prevention component. It is
unclear how many of these programs are now teaching child sexual abuse prevention in the
classroom.
           One curriculum, Our Children’s Future, produced by NICWA (1991) under a grant from
the National Center on Child Abuse and Neglect, has been used in a few Head Start programs.
The curriculum is culturally and developmentally based and focuses heavily on parent
involvement.


Intervention to Reduce Problem Behavior
           All but one of the programs in the 1998 study engaged in activities that target problem
behaviors and seek to stop current abuse or neglect. They included programs that addressed
anger management and taught non-violent conflict resolution. Some of the programs provided
therapeutic daycare or respite care. They also included protective services, home visits,
counseling, therapy, or out-of-home care where the effort was to prevent re-abuse or neglect.
           Since almost all the prevention programs studied were conducted by programs that are
primarily intervention based, the variety of intervention methods being used was not surprising.
What was surprising, in comparison to non-Indian programs, was that parent support, public
awareness, and cultural strengths approaches were being delivered side by side with intervention
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services, often by the same staff. As reported by the participating programs in the follow-up
study, this remains true in 2004.
           Today the intervention-based approach is the only form of prevention that consistently
operates in tribal communities. It is related to the discussion of child protection covered in
Chapter 6, ―Child Protection Systems in Indian Country.‖


Social Risk Reduction
           A number of programs (8 of 11) in the 1998 study group reported activities that reduced
other social problems such as domestic violence, poverty, teen pregnancy, and substance abuse,
all of which have a high correlation with child abuse and neglect. These activities included
alcohol and other drug abuse prevention, anti-poverty programs, and programs that restore
cultural norms against abuse. This finding was very promising in light of the findings of Nelson‘s
(1994) research on child abuse and neglect and the risk factors involved. These programs seem
to recognize that doing something about poverty and substance abuse is essential to prevention
efforts. According to the study group, many tribes were conducting wellness projects that
addressed a variety of prevention topics, the most common of which is focused on substance
abuse. Some of these projects also had a parenting and/or a child abuse prevention component.
           Today the Boys and Girls Club, the Substance Abuse and Mental Health Services
Administration (SAMHSA) funded Circles of Care projects (mental health systems of care
planning grants) , child-care programs under Temporary Assistance for Needy Families (TANF),
and child support enforcement (Title IV-D) represent other elements of social risk reduction. In
addition, a few tribal housing authorities are using social risk reduction activities that contribute to
abuse and neglect prevention.



Cultural Strengths
           Finally, all programs studied in 1998 reported activities that revived or reinforced cultural
strengths and the values of child-rearing practices that naturally prevented child abuse and
neglect. This approach is most typical of all the prevention approaches in Indian communities.
These programs included the use of spiritual teachings about children and their care, the use of
kinship support networks, and the use of traditions such as storytelling, cradle-boards, and
naming ceremonies. In addition, cultural strengths are being used to adapt and augment every
other approach to the prevention of child maltreatment. These services are culturally sensitive,
because they rely on the culture for strength. They are community based, because they tap into
culture as a resource. They are family centered, because the culture itself is based on family
relationships. These activities remain vital but happen most often in the context of family
relationships. While these approaches are believed to be the most effective in the long run, they
are the least funded and the least evaluated.

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Evaluation and Research Issues
           The tribal child abuse and neglect prevention programs or program components included
in the 1998 NICWA report represented some of the most promising models in the nation.
Unfortunately, the few available resources did not allow programs to measure the effectiveness of
what they were doing. This is even more true for most prevention efforts today. We do not know
how effectively current resources are being used, thus making it difficult to gain new resources.
Some tribes are conducting prevention activities in larger child welfare, mental health, behavioral
health, or family support programs, without collecting and storing data on the prevention activities.
In other tribes, prevention programs in substance abuse or larger community wellness
approaches have been developed but without measures of the impact on child maltreatment.
Head Start has played an important role in child abuse prevention in Indian communities
throughout the last several years with performance standards requiring attention to child
maltreatment. No data, however, have been generated to date. Unfortunately, without such data,
additional funding sources are difficult to attract. If child abuse prevention is to be funded, these
issues will have to be addressed.


Barriers to and Strategies for Change
           The findings of the 1998 NICWA report suggested that many people in Indian Country
see child maltreatment as a problem and have a desire to do something about it—so much so
that they find ways to engage in prevention activities despite barriers. The 5-year follow-up
reveals, however, a discouraging picture. A lack of sufficient and reliable funds proved to be a
major barrier to sustainability. The 1998 study reported that lack of funding would prevent more
widespread implementation of prevention programs in Indian communities. Not only did
prevention not spread as predicted, it appears that there have now been significant losses.
           Another barrier to local solutions has been the lack of culturally specific materials. Most
prevention strategies in use in Indian communities have been adopted from the non-Indian world
but have needed major adaptation to fit the cultural context of Indian communities. Prevention
experts agree that materials must be culturally tailored to be accepted as relevant by American
Indians, but presently few materials exist. A few national Indian organizations have produced
most of the materials now in use. A literature search conducted for this report found no new
materials produced since 1997.
           Larger social context issues in Indian communities need to be further addressed. What
may at first glance not seem to be child maltreatment prevention often is. For example, to the
extent one can do something in Indian communities about substance abuse and poverty, one can
go a long way toward prevention of child neglect. While they are not currently counted as child
maltreatment prevention programs, substance abuse programs should be considered an
important component of child neglect prevention. Historically, Healthy Nations and the work of
the National Association of Native American Children of Alcoholics (NANACOA) provided

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important contributions in this area. Currently, grants from the Center for Substance Abuse
Prevention (CSAP) are filling a small fraction of the need.


Funding of Prevention Efforts
           Funding for child abuse and neglect prevention in Indian Country is very limited. Most
funding for child welfare services comes from federal sources, such as the Bureau of Indian
Affairs or Department of Health and Human Services (DHHS). Because tribal funding in child
welfare overall is very limited, available funding is often used to support non-prevention services,
such as foster care or child welfare case management. What little prevention funding is available,
such as Title IV-B, Subpart 2, Promoting Safe and Stable Families, only goes to approximately 70
tribes in the United States and is allocated in very small amounts. The majority of IV-B, Subpart 2
grants are approximately $10,000 (the minimum amount). Most of these grants go to support
family services and not prevention. Nearly 490 tribes receive no IV-B, Subpart 2 funding at all.
           State governments, while also lacking access to adequate prevention funding, still
receive funding from sources that tribal programs are not eligible for, such as the Title XX Social
Services block grant and the Child Abuse Prevention and Treatment Act (CAPTA) formula grants.
In addition each state now has a children‘s trust fund that funds ongoing child abuse prevention.
More information on these funding sources is presented below.


Child Abuse Prevention and Treatment Act
           CAPTA provides federal support to states for prevention, identification, assessment,
investigation, prosecution, and treatment of child abuse and neglect. It also establishes a federal
role in research, evaluation, technical assistance and data collection. With a total fiscal year
2003 appropriation of $89 million, tribes receive less than $1 million only in the form of
competitive discretionary grants. The bulk of this funding is under the Family Resource and
Support Program, which has a 1% allocation that is shared between tribes and migrant
populations. Only three grants were made to tribes, tribal consortia, or Alaska Native
Corporations under this program. In fiscal year 2003, approximately 33% of the CAPTA
appropriation was for discretionary research and demonstration grants, none of which were
awarded to tribes. CAPTA Basic Grants, which are allocated to states on a formula basis,
amounted to $21.9 million in fiscal year 2003. Again, none of this funding went to tribes. CAPTA,
while a modest source of funding even for states, is not reaching tribal children. Two states
declined the formula grants under CAPTA in fiscal year 2003 for various reasons, including a
judgment that the federal requirements and stipulations imposed as a condition of funding were
too burdensome for the small amount of resources to be gained. Such funds could be made
available to tribes with no fiscal impact.


Social Services Block Grants

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           Title XX of the Social Security Act is also a source of funding for prevention activities in
the states. A picture of the situation for tribal access to Title XX and other federal social service
and child welfare funds was provided in a 1994 report by the DHHS Office of Inspector General
(OIG), entitled Opportunities for Administration for Children and Families to Improve Child
Welfare Services and Protections for Native American Children. The report documented that
tribes receive little benefit or funding from federal Social Security Act programs, specifically Title
IV-E Foster Care and Adoption Assistance, the Title XX Social Services block grant, and the Title
IV-B Child Welfare Services and Family Preservation and Support Services monies. While tribes
receive a small amount of direct funding under both of the IV-B programs ($4.6 million for Title IV-
B, subpart 1 and $4.4 million for Title IV-B, subpart 2 for fiscal year 2002), there is no direct
funding available to tribes under the much larger Title IV-E and Title XX programs.
           In listing options for improving service to tribes, the OIG study stated that the surest way
to guarantee that Indian people receive benefits from these Social Security Act programs is to
amend the authorizing statutes to provide direct allocations to tribes. This statement was
repeated in a hearing conducted by the Senate Committee on Indian Affairs on April 5, 1995, by
the Office of Inspector General from DHHS.
           Because Congress provided no authority for the Administration for Children and Families
(ACF) to award Title XX funds directly to tribes, and the law neither requires nor encourages
states to share funds with tribes, it is necessary to amend the authorizing legislation to make
tribal governments eligible to receive direct Title XX Social Services block grants.


Children’s Trust Funds
           Through the advocacy efforts of many organizations in the 1980s, a national system of
state children‘s trust funds dedicated to child abuse prevention was developed. These trust funds
have become one of the key funding sources for prevention efforts in each state. All states have
established trust funds, which raise public and private prevention funding through a variety of
methods including partnerships with private foundations, private donors, and state tax return
donations (check-offs) to name a few. These trust funds together raise $100 million dollars
annually through their fund-raising efforts and leverage even more. They also have been
effective at keeping prevention as a priority of the communities, policymakers, and service
providers. Additionally, these trust funds are a strong voice for prevention efforts, and millions of
non-Indian families have benefited from them, as these trust funds have supported the
development and testing of many forms of prevention. The federal government, under the
CAPTA, provides a limited match to states‘ efforts in preventing child abuse. American Indian
tribes are not eligible for these matching funds and, under the legislation, are not recognized as
governments providing such services. While tribes, like local jurisdictions or non-profits, may
apply for children‘s trust fund dollars in their respective state, none of the tribes contacted for this
report receive such state children‘s trust fund grants. Unfortunately, no such mechanism is
available on behalf of Indian children, families, and communities. A national Indian Children‘s
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Trust Fund has been proposed by some national Indian organizations to provide functions similar
to what a state Children‘s Trust Fund does.


National Resource Centers and Clearinghouses
           Tribal communities need technical assistance and training resources for programs that
want to engage in prevention efforts. While some tribes have developed prevention strategies,
this information is not widely available to other tribes who may want to learn from and replicate
them. Historically, technical assistance that has been available was created with mainstream
communities in mind and had limited application to diverse tribal communities. Some of the
National Resource Centers in Child Welfare have tried to meet some of the need, but are not well
equipped to provide ongoing technical assistance in Indian Country and have often not utilized
tribal people in the development of their trainings and technical assistance. In particular, the
National Resource Center on Child Maltreatment has failed to be responsive to tribal issues since
its development despite a requirement for such expertise by the funding agency.
           The National Clearinghouse on Child Abuse and Neglect has also been minimally
responsive to tribal needs. No Indian-specific services have been offered by the Clearinghouse
since the 1998 study conducted by NICWA under contract with the Clearinghouse. The
authorizing legislation (CAPTA) charges the Clearinghouse with many priorities and does not
specify a tribal role. Over the years, the Clearinghouse has attempted to be responsive despite
competing priorities. However, without a legislative mandate, its capacity to deal with tribal needs
is limited.
           Tribally specific legislation, including the Indian Child Protection and Family Violence
Prevention Act (P.L. 101-630), should but does not remedy this situation. P.L. 101-630 authorizes
the establishment of Indian Child Resource and Family Services Centers and Indian Child
Protection and Family Violence Prevention Programs, which include technical assistance and
prevention activities respectively. Unfortunately, neither program has received appropriations
from Congress.


Other Federal Programs
           Other federal programs have the potential of contributing to child abuse and neglect
prevention. Tribal housing authorities funded under the Department of Housing and Urban
Development (HUD) have the capacity to offer services that contribute to family strengths,
budgeting, and drug abatement. Some of these programs have been creative in joining with child
welfare authorities in prevention efforts, for example, by offering parent education or anger
management services.
           Several tribes have begun to operate child support enforcement programs under Title IV-
D. While such programs do not have a child abuse prevention component, they do help reduce
social risk factors that contribute to abuse and neglect.

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           Agricultural extension services have also been tapped as resources for parent training,
family life skills training, infant nutrition and infant care. Again, such programs, while not
designed as child abuse prevention programs, serve that function.


Conclusion
           Organized and comprehensive prevention of child maltreatment in Indian Country is rare.
Where it is happening, it is accomplished by people who have the will and energy to put together
prevention efforts out of fragments of other programs. Rarely do these approaches receive any
systematic evaluation, not for lack of will, but for lack of resources and technical skill. Further,
efforts in Indian communities to prevent child maltreatment seem to be aware of the impact of
larger contextual issues and address them through social risk reduction approaches.
           Given sharply increasing reports of maltreatment (Greenfeld & Smith, 1999), prevention
programming should be expanded in American Indian communities. Every American Indian
leader needs to know that this is a growing problem that threatens the well-being of the whole
tribal community. Every policy maker needs to be aware that, given the resources, Indian people
can and will engage in prevention efforts. Every Indian advocate, program director, and staff
person needs to know that evaluation of these efforts, no matter how modest, is essential to their
survival. The following are major issues that need to be addressed to ensure successful
prevention activities in Indian communities:


          More, and more reliable, sources of funding for prevention efforts in Indian Country are
           needed, such as expanded access for tribes to CAPTA funds, the creation of a National
           Indian Children‘s Trust Fund, and appropriations under (P.L. 101-630).
          Prevention methods that are culturally based, such as the approaches of programs
           profiled in this report, need to be promoted and disseminated through publications,
           conferences, the Internet, and other means.
          Communities need Indian-specific materials, training, and technical assistance on
           prevention and program evaluation.
          Evaluation efforts need to be designed and conducted that further document the
           effectiveness of the promising practices discussed in this report.


           It is essential that tribes build the capacity to conduct comprehensive child abuse and
neglect prevention and that it be evaluated. National attention on this topic is needed. Tribal
leaders, government officials, Congress, and advocacy organizations all have an important role to
play in helping increase tribal capacity to prevent child maltreatment.




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                                           REFERENCES
Berlin, I. (1986). Psychopathology and its antecedents among American Indian
           adolescents. Advances in Clinical Child Psychology, 9, 125-152.


Bourland, G. (1995, October). Children need love, not neglect. Indian Country Today.


Cross, T. (1986). Drawing on cultural traditions in Indian child welfare practice. Social Casework,
           67.


Cross, T.L. & Ollgaard, S. (1999). The status of child abuse and neglect prevention in American
           Indian communities. Portland, OR: National Indian Child Welfare Association.


Deserly, K.J. & Cross, T.L. (1996). American Indian children’s mental health services: An
           assessment of tribal access to children’s mental health funding. Portland, OR: National
           Indian Child Welfare Association.

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Earle, K. & Cross, A. (2001). Child abuse and neglect among American Indian/Alaska Native
           children: An analysis of existing data. Seattle, WA: Casey Family Programs.


Greenfeld, L. & Smith, S.K. (1999). American Indians and crime. Washington, DC: U.S.
           Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, NCJ
           173386.


Indian Health Service. (1990). Trends in Indian health.


Indian Health Service. (1997). Trends in Indian health.


McShane, D. (1987). Mental health and North American Indian/Native communities. American
           Journal of Community Psychology, 15.


National Indian Child Welfare Association. (1994). Heritage and helping: A model curriculum for
                                               nd
           Indian child welfare practice. (2        ed.). Portland, OR: NICWA.


Nelson, K., Landsman, M., Cross, T. & Tyler, M. (1994). Family Functioning of Neglectful
           Families: Final Report. Iowa City, IA: University of Iowa School of Social Work, National
           Resource Center on Family Based Services.




Paget, K., Philip, J., & Abramczyk, L. (1992). Recent developments in child neglect. In T.
           Ollendick and R. Prinz (Eds.) Advances in clinical child psychology. New York, NY:
           Plenum.


Three Feathers Associates. (1988). Native American Head Start statistics. Norman, OK: TFA.




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                            Child Protection Systems in Indian Country
                                 Terry L. Cross, MSW, ACSW, LCSW


                                               Abstract
           This chapter examines child protective services among federally recognized tribes. It
reviews the unique cultural context in which these services operate and highlights the diversity
and complexity of child protection in Indian Country. The cultural, political, policy, jurisdictional,
system, and resource challenges that hinder effective service delivery are described. The first
section provides background about the cultural basis and historical context for tribal law and
services, describes the relationship between tribal sovereignty and child protection, and outlines
the development of child protective services on reservations. Next, a general overview of the
elements found in tribal child protection systems is provided. This discussion illuminates the
complex melding of current federal child protection policies with 200 years of related federal
Indian policy within tribal child protection systems. This chapter then describes barriers in the
child protection system, such as barriers to reporting of child abuse and neglect in Indian
communities and to investigating reports on reservations. Other concerns identified by tribes and
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service providers as specific challenges, such as issues with investigative or civil and criminal
jurisdictional procedures, are also discussed. Several aspects of child protection systems that
seem to be working, such as promising approaches to dealing with investigations, character and
criminal background checks, accessing traditional healing practices, utilizing family group
decision making, systems integration, and training and technical assistance, are also outlined.




                                            Introduction


                 This chapter examines child protective services among federally recognized
tribes and the historical and legal basis for such services in tribal communities. It reviews the
unique cultural context in which these services operate as well as the challenging, complex, and
diverse policy, system, jurisdictional, and service issues involved. The goal of the chapter is to
lay out, with as much clarity as possible, the diversity and complexity of child protection in Indian
Country and to describe the cultural, political, policy, and resource challenges that hinder
effective service delivery. The first section provides a background discussion, which is divided
into three parts: part one describes the development of child protective services on reservation;
part two describes the cultural and historical basis for tribal law and services; and part three
provides summary of the relationship between sovereignty and child protection. The second
section of the chapter provides a general overview of the elements found in tribal child protection
systems and outlines the complexity of these elements due to the relationship between layers of
federal child welfare policies and 200 years of federal Indian policy. The third section of the

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chapter discusses several issues that have been identified by tribes and service providers as
specific challenges. The fourth section describes several aspects of child protection systems that
seem to be working and provides a discussion of promising approaches to practice and training.


                                               Background


Development of Child Protective Services on Reservations
           Tribal rights and responsibilities to protect children are based in international law, the
United States Constitution, treaty law, and numerous federal laws and policies. Tribes, like
states, have sovereign authority over and responsibility for the protection of children (American
Indian Lawyer Training Program, 1988). Unfortunately, tribal governments have not always had
the opportunity to be involved in protecting their children despite having sovereign authority.
Exercising that sovereignty has been the tribes‘ greatest challenge, with resources and authority
being given to other governmental entities, such as states or the Bureau of Indian Affairs (BIA).
Based on treaty law and the Constitution, the federal government has a ―trust responsibility‖ to
American Indian tribes—a formal obligation to protect and provide for their health, education, and
welfare. Historically, this concept formed the legal basis for federal operation of child protective
services on reservations. Over time, this federal role created a sense of hopelessness and
dependency in many tribal communities. As a result, tribal responsibility for children‘s well-being
was diminished. Nonetheless, since the 1970s, there has been a rapidly increasing trend for
tribal governments to seek out solutions to child abuse and neglect that embrace their culture and
recognize their sovereign rights to be involved in their children‘s protection. However, the
legacies of the past mean that many tribes today are unable or unwilling to assert their sovereign
authority in this area, due to a lack of resources and/or capacity, their deference to state
authority, or their belief that these services should be provided under the federal trust
responsibility. (For more information on the trust responsibility, see Chapter 10, ―Tribal Courts
and Jurisdiction in Child Welfare.‖)
           Child protection is a very complex, and very important responsibility for any government.
To be successful, it requires a commitment to involve people from all areas of the government
and community in planning and implementation. This requires community ownership of the
problem and support for the solutions. In American Indian communities, new approaches are
being developed, and community support is increasing despite a difficult and complex set of
circumstances surrounding the work. The complexity of this field is a result of the combined
histories of Indian culture, child welfare policy, and federal Indian policy. Understanding the
context set by the intersection of these histories is important in developing an understanding of
the policy and practice issues of today.


Cultural Basis and Historical Context for Child Protection

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           Prior to contact with European immigrants, tribal practices and beliefs about child-rearing
allowed a natural system of child protection to flourish. At the heart of this natural system were
beliefs, traditions, and customs involving extended family with clearly delineated roles and
responsibilities. Child-rearing responsibilities were often divided up between extended family and
community members (Cross, Earle, & Simmons, 2000). In this way, the rearing and protection of
tribal children was the responsibility of all people in the community.
           Traditional Indian spiritual beliefs emphasized that all things, including children, had a
spiritual nature that demanded respect. Not only were children respected, they were also taught
to respect others. Extraordinary patience and tolerance marked the methods that were used to
teach Indian children self-discipline. Management of behavior or obedience was obtained from
the fear of and respect for something greater than the punishment of a parent. Child abuse and
neglect were seldom problems in traditional settings due to a combination of respect for children,
teachings about self-discipline, and shared child-rearing among extended family.
           As European migration to what is now the United States and Canada increased,
traditional tribal practices in child-rearing became more susceptible to the influences of the
dominant society. Efforts to ―civilize‖ the Native population were almost always focused on Indian
children. (For more information, see Chapter 1, ―Historical Factors Influencing Child Abuse and
Neglect in Indian Communities.‖)
           By 1900, after decades of forced removal of Indian children from their families and
communities and the stripping away of their culture, the natural child protection system that once
flourished in every tribal community began to break down. During the next half-century, tribal
traditional practices continued to be discouraged and banned by federal and private agencies,
while oppression, alcoholism, disease, and poverty were allowed to take hold in most tribal
communities.
           The long-term effects from removals of Indian children and efforts to strip Indian children
of their culture produced generations of Indian adults who have weak ties to their families and
tribal communities, unresolved grief and trauma, and few supports or resources to help them.
Other factors that contributed to the rise of child abuse and neglect in Indian Country include
inappropriate interpretations of Indian parenting practices; federal policies that have supported
family and community disintegration, such as termination and relocation; and learned responses
that result from oppression and exploitation. As these destructive elements permeated Indian
Country, child abuse and neglect also became more prevalent.
           While government policies towards Indian people shifted in the 1950s towards a more
humanitarian view, this new approach was not without serious deficiencies and consequences.
Humanitarian efforts still viewed assimilation as the best answer to the ―Indian problem‖ and
viewed tribes as incapable of caring for their children. New projects were begun, such as the
Indian Adoption Project, which used public and private agencies to remove and place hundreds of
Indian children in non-Indian homes far from their families and communities (Mannes, 1993).

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Few efforts were made or resources committed to help tribal governments develop services on
tribal lands that would strengthen Indian families.
             Until 1953, the federal government largely usurped tribal sovereignty and, via the BIA,
was viewed by state and local governments—and even by some within the Indian nations—as
having responsibility for child welfare on Indian reservations. In truth, there were few services
provided.
             Legislative action during the 1950s was designed to eliminate tribal status as dependent
sovereign nations and make Indian people subject to all legislation as applied to citizens of the
                                                                                                                      62
United States. However, the Indian termination policy of 1953 and Public Law (P.L.) 280                                    of 1953
were not effective and much of their authority was later rescinded. (For more information, see
Chapter 10, ―Tribal Courts and Jurisdiction in Child Welfare.‖)
              Legislation from the 1950s through the 1970s attempted to address issues regarding the
abuse of children, as identified in the press and advocated by community activists and caring
citizens. Much of the legislation enacted during this time period, such as the Child Abuse
Prevention and Treatment Act and Title XX of the Social Security Act, did not apply directly to
tribes that, as sovereign governments, were not specifically addressed. Tribes, thus, have never
been specifically funded to protect their children, and no federal legislation requires child
                                    63
protection on reservations . The failure of the federal government to either provide or fund child
protective services has left a void that leaves Indian children vulnerable to maltreatment and even
death.


Child Protection’s Relationship to Sovereignty
             The complexity of the relationship between tribes, states, and the federal government as
described above has historically contributed to confusion by policymakers and bureaucracies
about who is responsible for what services . This complexity has also contributed to under-
funding of tribes.
             Whether or not a government can fulfill its obligations to its citizens, sovereign
governments are responsible for the safety and well-being of those citizens. Whether funds are
available or not, child protection is a tribal government responsibility. In the last 30 years, tribes
have reasserted themselves and have begun exercising the sovereignty that they always had but
did not have the capacity to implement.


62
     P.L. 280 allowed states the option of assuming jurisdiction over selected civil and criminal matters on Indian
reservations.
63
     Currently, the tribes that are able to provide child protection use a variety of strategies to piece together a program. In
non-P.L. 280 states, tribes that have P.L. 638 contracts for social services may use some of those funds toward child
protection. In some P.L. 280 states, tribes may receive state contracts to support child protective services (CPS)
programs. Tribes that participated in the self governance program may devote some of the programs‘ resources to child
protection. A few tribes use tribal funds generated from economic development activities to operate their own child
protection programs without federal or state support.
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             Beginning with the Indian Child Welfare Act in 1978 (25 U.S.C. §§ 1901-1963), tribes
began in earnest to reclaim their responsibility for the protection of tribal children. There are 563
Native American tribes and Native Alaskan villages recognized by the federal government.
Today, almost every tribe in the nation provides some form of child welfare services to its
children. However, the funding strategies of earlier decades are still in place, and this lack of
access to resources continues to prevent tribes from exercising their full authority in child
protection.
             What are tribes doing to reassume their rightful role in child protection and to assert their
sovereign authority? They are working to protect their children, identifying policy revisions that
are needed to remove barriers to tribes exercising full sovereign authority over child protection
and child abuse prevention. Tribal leaders, child advocates, and elders are being educated about
these issues and about what they can do to help Indian children receive the same level of
protection from child abuse and neglect as all other children in this nation.
             As tribes build their own community-based services, they are beginning to deal with the
difficult problem of child maltreatment. Following is an overview of child protection systems.


Overview of Tribal Child Protection Systems
             Child protection systems, whether tribal or state, consist of several programmatic and
procedural elements. While these elements vary greatly in their application, they generally
include at least the following items:


                     requirements for mandatory reporting of child abuse and neglect and a publicly
                      known mechanism for receiving those reports
                     intake and screening of complaints
                     initial response and assessment of legitimate child abuse and neglect complaints
                     emergency removal and placement in appropriate cases
             
                                     64
                      due process,        including initiation of civil court action and in some cases criminal
                      proceedings
                     family assessments, service plans, and services designed to eliminate the possibility
                      of future maltreatment


Mandatory Reporting of Child Abuse and/or Neglect
             Reporting of child abuse and/or neglect in Indian Country is required of certain individuals
working with children under the Indian Child Protection and Family Violence Prevention Act (P.L.
                 65
101-630).             Anyone who is concerned with the safety of a child and suspects abuse or neglect
can report. Where to report will vary from community to community and is discussed below.


64
     ―Due process‖ refers to proper legal procedures that are constitutionally protected.
65
 In this sense, ―reporting‖ is the filing of a complaint with the proper authority.
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Intake and Screening
          Reports of child abuse are received by the ―agency of statutory authority,‖ is designated
in the tribal code. Such an agency could be a department or program set up specifically for the
purpose of responding to allegations of child abuse, or it could be tribal law enforcement. In
some situations, child protection programs share this function with law enforcement (for
emergency coverage, for example). In the absence of a tribal code that designates the
responsible agency, such reports may be screened by BIA social services or law enforcement
(non-P.L. 280 states) or by state or county child protection offices or local law enforcement (P.L.
280 states). Screening a report represents the first critical practice decision point in child
protection. The screener must determine if the caller has a legitimate concern, and if so, if the
child is at imminent risk of harm. Many calls will not warrant a response, and some will warrant
an emergency response, while other situations will warrant a non-emergency investigation. It
                                                                  66
should be noted that there are at least six possible variations        in who might receive and screen
such calls depending on jurisdictional and service configuration issues.


Initial Response
          Reports warranting a response trigger a protective services investigation, a civil process
to determine if the child is in need of protection or care. This initial investigation, like the intake, is
done by the ―agency of statutory authority,‖ i.e., any of the following: a tribal program set up
specifically for that purpose, tribal law enforcement, BIA social services, BIA law enforcement,
state or county child protective services, or local law enforcement. However, child protection
programs share this function with law enforcement—for example, for emergency coverage or for
ensuring safety of workers in extreme situations.



Initial Assessment
          The initial protective service investigation provides a quick assessment of the danger of
imminent harm to the child and whether the behavior of the perpetrator of the abuse or neglect is
likely a criminal act. This is the second critical decision point in child protection. If the investigator
finds a child in imminent danger, the child is immediately removed from the home for his/her
protection. The specific laws of that jurisdiction will dictate who has authority to remove the child
and under what circumstances. If the child is not in imminent danger but the situation warrants
further investigation, the child is usually left in the home or placed voluntarily pending further
assessment and civil action. In such cases, if the initial investigator is a law enforcement officer,
the later situation will be turned over to child protection for further civil process and action. When
investigators find possible criminal behavior, a criminal investigation is launched (by law


66
 See Table 1 for detailed description.
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enforcement) in addition to the child protection investigation. Different rules apply in civil versus
criminal situations, but both processes can go forward at once. In tribes where child protection
staff do the initial investigation, law enforcement is called in those cases that warrant criminal
investigation. In tribes this initial assessment may be conducted by any one of at least six entities
(i.e., tribal, state, or federal child protection or law enforcement programs).


Initiating Court Actions
           Petitioning the court to initiate a dependency proceeding is a civil action and is the civil
application of legal due process afforded to parents. A petition amounts to an allegation that a
child is in need of protection. They are factual statements about the condition of the child and an
appeal to the court to protect the child. Petitions will be filed in tribal court for those tribes having
courts for that purpose or in state courts where states share jurisdiction in child welfare. In some
locations, state protective services worker file petitions in tribal courts, and in others, tribal
workers file petitions in state courts. Several models for filing a petition can and do exist.


Civil Court Actions
           Civil court actions deal with the protection of the child and are taken in a series of
hearings in tribal or state court (depending on jurisdictional issues and whether the tribe has an
appropriate court, as discussed in other chapters). A preliminary hearing usually occurring within
24 to 48 hours of the initial investigation and petition determines whether the initial evidence
warrants the intervention of the tribal or state government based on jurisdiction. In some places,
both governments will conduct their own civil investigations. After a more thorough investigation,
the agency will present its evidence and recommendations. During this phase, the court is
concerned with substantiation of the facts. An adjudication hearing provides the court‘s finding on
the civil allegations (civil process). Next, a dispositional hearing results in an action plan,
approved or set by the court, which directs the parties involved to engage in prescribed actions.
The court bases its disposition on assessment of future risk of harm, a psycho-social assessment
of the family, and related issues. The court has the option of leaving the child in his or her own
home under court supervision or placing the child out of the home in a variety of settings. At
approximately six-month intervals, review hearings examine the status of the disposition, order
appropriate changes in services, or return the child. Finally, if the parents have not been able to
make a safe home for their child, a permanency hearing results in a long-term disposition. (For a
thorough discussion regarding permanency issues, see Chapter 9, ―Foster Care and Permanency
Issues for American Indian/Alaska Native Families and Children.‖)


Criminal Court Actions
           Criminal proceedings in a child protection case are separate from civil proceedings. They
are initiated by law enforcement and deal with the alleged perpetrator of a crime (e.g., assault or
sex crimes). How criminal actions are handled is governed by federal law as described in other
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chapters. (For more information, see Chapter 10, ―Tribal Courts and Jurisdiction in Child
Welfare‖).


Child Protection Teams
           The role of child protection teams (CPTs) is to ensure cross-disciplinary coordination, to
improve assessment and decision-making, and to ensure implementation of appropriate
resources to support the family and the child. Child protection teams have no innate authority.
They are not the agency of statutory authority and, thus, have no investigative power. Rather,
they assist the agency of statutory authority by bringing together a team of professionals whose
joint judgments extend the capacity of the agency to protect the child and expand the knowledge
of available resources. Child protection teams keep the eyes of multiple service providers on the
child and contribute resources and services to meet diverse needs of children and families.
Further, a CPT does not have the decision-making power of the court. It advises the court and, in
so doing, increases the confidence of the court that it has reached the appropriate conclusions.
Following passage of the Indian Child Protection and Family Violence Prevention Act (P.L. 101-
630), the BIA and the Indian Health Service (IHS) entered into a joint memorandum of agreement
establishing child protection teams at the area level and the agency level. These teams are
advisory in nature and are primarily designed as information resources for the tribes. While they
are called ―child protection teams,‖ they do not function as described above and are not CPTs as
defined by the field of child protection. Since they are not organized by the agency of statutory
authority, they have none of the function or power usually granted by that agency to ensure the
protection of children. In addition, these teams look different from area to area, and most operate
only sporadically. While these teams can provide a venue for important coordination or
information exchange, they are neither sustainable nor effective in their current form. In some
locations, tribes have developed their own CPTs in line with national standards and have
incorporated them into policy or code. Such teams do operate as true CPTs but are difficult to
form, train, and maintain due to the void in federal funding to support them.



Table 3: System Complexity Chart
SYSTEM ELEMENT                                        POSSIBLE PROVIDER            VARIABLES

Reporting child abuse or neglect                      Mandatory reports            Tribal and/or state
                                                              under state,                 codes, P.L.
                                                              federal, or tribal           280
                                                              code; on or off
                                                              reservation; or
                                                              concerned
                                                              individuals

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Intake and screening                                Tribal CPS, tribal law       Tribal code, P.L. 280
initial response                                            enforcement,                  status, 638
initial assessment                                          state CPS,                    or self-
                                                            county law                    governance
                                                            enforcement,                  status, local
                                                    BIA social services, BIA              agreements
                                                            law                           or protocols,
                                                            enforcement
Civil court actions                                 Tribal court, state court,   Jurisdiction, tribal
                                                    BIA social services (no               code, P.L.
                                                            tribal court,                 280 status,
                                                            non-P.L. 280                  638 or self-
                                                            state)                        governance
                                                                                          status
Psycho-social assessments                           Tribal CPS, state CPS,       Resources, capacity,
                                                            BIA social
service plans                                               services,                     P.L. 280
family and care services                                                                  status, 638
                                                                                          or self-
                                                                                          governance
                                                                                          status
Criminal court actions                              Tribal court,                Jurisdiction, level of
                                                    state court, federal                  the offense
                                                            court

Child protection teams                              Tribal, federal              Tribal code, federal
                                                                                          policy


Discussion of Issues: Problems and Barriers in Child Protection Systems
           As described above, child protection systems in Indian Country are diverse and
fragmented into a complex array of service delivery models that leave some children unprotected,
some families without the protections of due process, and many agencies in doubt of who is
responsible for what. The most effective remedies to date for this fragmentation have been in
tribes where the tribal government has asserted its sovereign authority over child protection and
has developed the capacities to operate and coordinate with other jurisdictions. Tribal capacity
(and, therefore, resources) appears to be the key to effective child protection. While progress
has been made by a few tribes, major issues remain and are discussed below.


Reporting Issues


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           Effective reporting of child abuse and neglect is the first step in addressing existing
incidents and preventing further abuse or neglect. Unfortunately, it is also an area that is not well
understood by most individuals, including professionals, and is fraught with misinformation and
challenges.
           Prior to the passage of the Indian Child Protection and Family Violence Prevention Act
(P.L. 101-630), except in a handful of tribes that had protocols, there were no consistent
standards for how suspected incidents of child abuse and neglect should be reported. Many
tribes depended upon the BIA or state or county agencies to provide direction, which resulted in a
variety of standards and practices, most of which did not fully involve tribal governments. For a
tribal community member or professional, it was difficult to know who should report, who should
be notified, and whether an agency would respond to the report. Tribes, while having the
sovereign authority and responsibility to protect their children, were left out of the picture in most
places, which left the development of methods and protocol to others. In many tribal
communities, this led to the view that reporting of child abuse and neglect was not a community
responsibility and also led to confusion about what an individual‘s responsibility was. This
confusion further weakened traditional beliefs and practices that supported extended family and
community involvement in protecting children. The agencies in charge of taking reports did little
to encourage tribal involvement or to pursue systems that reflected community values and
practices. The overall result was systems of reporting that were neither clear nor readily
supported in Indian Country.
           Today, almost 13 years after the passage of the Indian Child Protection and Family
Violence Prevention Act, reporting has improved. Requirements to conduct background checks
for BIA, IHS, and tribal workers, as well as prospective tribal foster and adoptive parents, has
increased individual awareness of the need to report suspected child abuse and neglect. The
availability of more Indian-specific information, tribal protocols, and services related to child abuse
prevention has also made a difference in Indian people‘s awareness of child abuse and neglect in
general and the need to report it. However, barriers still remain to developing both effective
reporting systems in Indian Country and the community support they need to succeed.
           One barrier that is present may be related to individual interpretations or lack of
understanding of the reporting law. For example, if a teacher observes what he/she believes
might be abuse, do they report it directly to a local law enforcement or child protection agency, or
do they report to their school principal first? In many instances, the person making the
observation may want to report to his or her supervisor first, creating an increased risk of 1) the
information being filtered or 2) the report being submitted late or not being submitted at all.
           Another barrier may be related to the dynamics of living in a small tribal community where
many people know each other well. While the well-being of children is very important to all tribal
communities, situations where an individual tribal member might suspect child abuse but may not
be sure, cause a dilemma for that individual when they know the child‘s family well or the child is
the relative of a respected leader in the community. This is especially true when individuals do
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not understand the reporting system or do not trust the agency involved to respond appropriately.
In addition, confidentiality for the reporter is also an important consideration, even when the
agencies involved have strong measures in place to safeguard the reporter‘s identity.
           A third possible set of barriers includes resistance to reporting based upon an unclear
understanding of the definition of child abuse and neglect. No one wants to make a report that
turns out to be false and creates problems for a family or an individual, but any number of people
in a community can be exposed to evidence of child abuse and neglect and be mandated to
report. This includes primarily professionals, but may also include non-professionals. While most
professionals who work with children get extensive training in their area of expertise, not enough
get good training on how to recognize or respond to suspected incidents of child abuse or
neglect. Those who are not working directly with children have often had little or no exposure to
helpful information in this regard. Mainstream media, a primary source of information for many
people, has not helped much either. Coverage of child abuse and neglect seems primarily
geared towards horror stories of child protection agencies that did not respond well or people who
were wrongly accused and whose lives were ruined as a result.
           Tribal and state relationships are important to effective reporting. Many tribes still
depend upon a local, state, or county agency for child protective services, and if that relationship
is not productive, reporting can be impeded. In such cases, reporting problems may stem from
conflict not even related to child protection, which has spilled over into other service areas. Tribal
members may not want to report to a state or county agency if they perceive that the agency is
biased against Indian people or that the response will be heavy-handed. Additionally, sometimes
state agencies may not be prepared to address reporting issues on tribal lands for a variety of
reasons, including questions about who has jurisdiction and resources available to respond
effectively.


Barriers to Investigation
           The primary barriers that tribes face in pursuing effective investigations are a lack of
coordination and resources. As described above, investigations in Indian Country can involve a
variety of agencies, some of which are from different governmental entities (tribal, state, or
federal). Each has a different experience, role, and authority. If efforts are not carefully
coordinated, the chances that things will go wrong are high. Mistakes can occur very quickly in
the context of an investigation; the consequence can be that children become victims of the
system as well as of the abuse.
           The services described above are difficult and require well-trained and supervised staff to
execute them well. However, such staff are not available because resources are the most
prominent item missing from this equation. Many tribes are ready to take a more active role in
the investigation of child abuse and neglect and have the critical knowledge and experience
needed to perform the task well. This includes not only conducting investigations but also
increasing capacity through tribal code development, cross-agency protocols, and agreements.
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However, federal funding for tribal child protective services is very limited, and what funding is
available comes primarily from the BIA. This funding is only available to those tribes in non-P.L.
280 states.
          When other governmental entities are in the lead on the development of protocols and
techniques, tribes have the least amount of control over how investigations occur. This is
especially true in P.L. 280 states. Methods of investigation are at a higher risk for being
unresponsive to the needs of the children, families, and the tribal community. Tribal governments
have unique knowledge and qualifications needed in performing effective investigations; however,
in many cases, they are not fully consulted. Child protection or multidisciplinary teams that are
not under the authority of the tribe or whose membership is biased towards other governmental
agencies is are examples of this problem.
          Varying definitions of child abuse and neglect can also be a problem. Federal law
requires that states establish definitions for a variety of different types of abuse and neglect
without specifying exactly what these definitions should contain. The Indian Child Protection and
Family Violence Prevention Act also provides definitions for those involved in investigating child
abuse and neglect in Indian Country, and tribes may also have developed their own definitions
detailed in their tribal codes. When a state agency is involved in investigating child abuse and
neglect of an Indian child on tribal lands, it is most likely going to be operating from definitions it
uses even if the tribe and federal law have different definitions. Inappropriate judgments of what
constitutes child abuse can easily occur when state or county officials do not understand tribal
child-rearing or family practices. Although varying definitions of child abuse and neglect will have
similar elements, they create unnecessary confusion, which can lead to differing standards, some
of which may not be valid for application on Indian lands.
          In several states, and to some extent in federal rules, rules of evidence have been
changed to make it easier to use the testimony of child victims in the prosecution of perpetrators.
Federal rules of evidence have not kept pace with the changes that have occurred in state courts.
Because prosecutions of perpetrators who sexually abuse Indian children on tribal lands may
                           67
occur in federal court,         it would be beneficial to examine the federal rules of evidence carefully
to see if changes are needed for improving the chances of successful prosecution. New
practices and policies in this area may also be needed to prevent further abuse of Indian children.
          Training and technical assistance for tribal child protection personnel is another potential
barrier. The proper investigation of child abuse and neglect is very sensitive and requires critical
skills in interviewing, observation, interpretation, and evidence collection. These issues are
magnified in Indian Country where years of inappropriate investigation by non-Indian public and
private agencies have created a strong skepticism of child protective services in general. For
example, law enforcement personnel are often chosen as the first responders to complaints of
child abuse and neglect; their primary training is in law enforcement techniques, which may not


67
 See Chapter 10 for a discussion on the federal role in the prosecution of crimes on Indian reservations.
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include how to carefully interview an Indian child who has been the victim of child abuse.
Inappropriate techniques can lead to further trauma for the child and his/her family and possibly
taint the evidence needed to prosecute offenders. Tribes also need help in developing or
enhancing their capacity to investigate, which can include training in protocol and cross-agency
agreement development.


Civil Versus Criminal Procedures
         Child protection is both a civil matter and a criminal matter. Most child abuse and neglect
investigations are handled as civil matters. Simply put, as a civil regulatory issue, the state or
tribe passed codes regulating the relationship between parent and child. Civil child abuse and
neglect codes are sometimes referred to as dependency codes or children‘s codes. Enforcement
of such civil codes is vested in an ―agency of statutory authority,‖ usually the child welfare
department. In civil proceedings, an investigation determines if the child meets the definition of a
―dependent‖ due to some conduct, condition, or absence of a parent. Failure to adequately
supervise would be conduct by the parent that would endanger a very young child or could
contribute to an adolescent truancy or drinking. The state or tribe can intervene in the family
relations of a dependent child to provide in-home protection, take temporary custody, and set up
service requirements for issues the parents must address. Civil orders have the full force of the
law, and, therefore, these services are not voluntary.
         Child abuse and neglect, however, may also be a violation of criminal laws, such as
those addressing physical assault, reckless endangerment, sexual assault, and even murder.
When the maltreatment rises to the level of violation of a criminal code and charges are filed, the
case is investigated by law enforcement and prosecuted as a crime. When the line is crossed
between civil and criminal violations and who determines when a case has reached criminal
levels depends on many factors including the type of crime, how the codes are written,
interagency protocols, and the role of the courts. All sexual abuse cases come into the criminal
arena, while most abuse cases and almost all neglect cases are handled as civil matters. In
almost all criminal proceedings, a civil proceeding takes place simultaneously to handle the child
dependency issues.
         Tribes have the sovereign right to handle the civil regulatory side of child protection, but
many do not have the capacity or infrastructure to do so. While tribes also have sovereign
authority to prosecute crimes committed on reservations by Indians, they are unable to prosecute
non-Indians. Further, when tribes do prosecute Indian perpetrators, the penalties that can be
                                                          68
imposed are limited by the Indian Civil Rights Act             (25 U.S.C. § 1301. see § 1302[7]). To
exercise its civil regulatory rights a tribe must have a code that sets up the regulation, defines
abuse and neglect, declares circumstances in which the tribes can intervene, and delegates
authority to an agency or department to enforce the code. As stated earlier, these codes are


68
 Maximum penalties are $5,000 in fines and one year imprisonment.
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usually referred to as dependency codes or children‘s codes. The tribe must then have an
agency of statutory authority to enforce the code. This is usually a child welfare agency, which
functions as both the civil investigator and the service provider for children and families in need.
Sometimes, the responsibility is shared with law enforcement, where law enforcement conducts
investigations and child welfare provides the services. The agency must have some capacity to
care for dependent children and usually relies on foster care and kin as the first resources. When
the children or youth in need of care or protection have special needs or behavior problems, other
resources are often required and can be challenging to find. Finally, a tribe exercising its civil
jurisdiction needs a court to hear cases of alleged abuse or neglect and the infrastructure to
enforce its court orders. This chapter concerns the civil regulatory child protection function of
tribes. Other chapters will address the criminal prosecution issues.
             One potential exception to this model exists where a tribe has no tribal court and is in a
non-P.L. 280 state where the tribe has exclusive jurisdiction over child welfare matters. In this
situation, the BIA may be providing child protective services and acting as investigator and
adjudicator of child welfare proceedings for the tribe. The BIA has claimed that their authority to
act in these roles comes from the Snyder Act; however, questions have been raised regarding
this interpretation of the Snyder Act by the BIA and due process issues for parents whose
children have been removed under this system. The question of whether the BIA does have
legal authority in this situation to act for the tribe as both investigator and adjudicator is still
unresolved.



Who Are the Key Players?
             Unlike most child abuse and neglect investigations involving non-Indian children, knowing
who is involved and what their role is can be complicated in an investigation involving an Indian
child. An investigation on tribal lands may involve tribal, state, and federal authorities from law
enforcement and child protection. The roles may not be clear, and it is not uncommon for an
investigation to get sidetracked because of this. For example, one interpretation of P.L. 280 is
that the state has concurrent jurisdiction with the tribe for the investigation of child abuse and
                                                             69
neglect, unless the tribe decides to retrocede                    and assume exclusive jurisdiction on tribal lands.
Under this view of concurrent jurisdiction (held by several states), the state and tribe share
authority and responsibility for the investigation of child abuse and neglect. However, P.L. 280
does not spell out how that jurisdiction or responsibility is to be shared. This is, many would say,
because the interpretation described above is invalid and usurps tribal authority in this area. In
some cases, the state may perform almost all of the investigative functions; in other situations,
the tribe may participate as an equal partner, providing child protection and law enforcement


69
     Tribes may reclaim jurisdiction lost under P.L. 280 by petitioning the Secretary of the Interior for restoration of the
jurisdiction. This process is referred to as ―retrocession.‖
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personnel for the investigation. In order to keep investigations running smoothly, tribes and
states must define their authority and their roles. This is most successfully done through an
intergovernmental agreement, but in the absence of an agreement, problems can and often do
arise very quickly. Lack of clarity about the intent of P.L. 280 and very different interpretations of
the law contribute another layer of confusion and complexity that could be solved with clarifying
federal legislation.
          In a non-P.L. 280 state, where tribes clearly have exclusive jurisdiction on tribal lands, it
is still not uncommon to see a variety of governmental agencies involved in investigations. If the
child abuse being investigated is determined to be a crime, as in sexual abuse, and the
perpetrator is Indian, it falls under the Major Crimes Act (18 U.S.C. §1153), which makes the
                                               70
crime prosecutable under federal law.               If the perpetrator is non-Indian, the offense falls under
the Indian Country Crimes Act (18 U.S.C. 1152), which allows federal prosecution of a crime by
non-Indians on reservations. In either of these types of cases, the Federal Bureau of
Investigation takes on the investigative role, and the U.S. Attorney General‘s office becomes
involved if prosecution of the offender is sought.
          As described before, the tribe may have it‘s own child protection personnel or tribal law
enforcement who do investigations or who may rely on the BIA law enforcement and/or social
services. It is also possible that state child protection officials may be involved in a non-P.L. 280
state depending upon the role that has been established for them with the tribe. Agreements or
Memoranda of Understanding (MOUs) that clarify authority and responsibilities are important here
too, but are not always present.
          The role of tribal courts is also important here, and the ability to honor tribal law and court
orders must be recognized if investigations and court proceedings are going to serve the best
interests of Indian children. In P.L. 280 states, a tribe may retrocede and assume exclusive
jurisdiction under federal law. Usually, this means that the tribe will also have an operational
tribal court that addresses child abuse and neglect complaints. Unfortunately, sometimes, states
do not recognize tribal jurisdiction in this situation or enforce tribal court orders, even though
federal law requires them to do so. This situation leads to confusion, duplicative efforts, and a
weakening of tribal authority to effectively address child abuse and neglect.


Regional Variations and Service Configurations
          In a 2000 study of a random (10%) sample of 57 tribal child welfare programs nationally,
Fox found variation between and within states as to who investigated child abuse/neglect
allegations. (See Earle, 2000.) Tribes were involved in 65% of all investigations, but were the sole
investigators in only 23%. Tribes and another organization were involved in 42% of investigations,
and 33% were completed without direct tribal involvement. Another 2.5% (one tribe) reported that
they did not have child protective services.


70
 Tribes hold concurrent jurisdiction and can also prosecute the same offense with limited penalties as describes earlier.
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           Other than the tribes, the organization most involved in tribal CPS investigations was the
state, which participated in 42% of tribal CPS investigations. Ten and one half percent of the tribal
programs in the study reported that the state was the sole CPS investigator for their children.
Counties were involved in a total of 21% of investigations, the BIA in 19%, and a consortium of
tribes in 9%. In some instances, there were more than two investigators (Fox, 2003).
           Although only 65% of tribes interviewed were involved in CPS investigations, fully 82%
had child protective teams in place to review reports, and 86% had child protective protocols,
indicating an ability and a willingness to take full responsibility for CPS functions (Fox, 2003).
           Tribal child welfare workers were also asked to rate their relationship with the state, and a
more positive relationship was correlated with these three findings:


    1. The agency who investigated child abuse and neglect shared information with the tribes.
    2. State/tribal agreements were in place.
    3. Only one group was responsible for the investigation, regardless of whether it was the
           tribe, state, county, BIA, or a tribal consortium (Fox, 2003).


    In a 1996 study of 20 tribes in Washington, a P.L. 280 State, Cross found that four tribes
provided their own child protective services while 14 shared this service with the state. For two
tribes, the state provided the service without tribal participation. However, when asked if they
would assume the responsibility if funding were available, 17 of 20 said that they would assume
or keep full responsibility. The other three indicated that they would share the responsibility with
the state. In no case did a tribe opt not to provide child protection if the resources could be made
available.


Promising Approaches and Related Issues
Investigations
           Numerous tribes, in both P.L. 280 and non-P.L. 280 states, have developed agreements
or MOUs with tribal, BIA, and state agencies to cross-deputize with local county law enforcement
and to clarify roles. These collaboration efforts pay big dividends for Indian children and the
tribes, as professionals involved in child protection find new and innovative ways to address
problems, receive support from other professionals, conduct and receive joint training, and
participate in larger community efforts to prevent child abuse and neglect.
           When tribes have been in leadership positions with respect to investigations, whether
they perform all the functions or not, better methods for investigation have been developed and
utilized. Other benefits of tribal leadership in investigations include the following: greater
community acceptance of investigative services; clearer expectations and definitions of what
constitutes child abuse and neglect; and use of natural helping systems and other cultural
practices that are more effective in protecting Indian children.

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           The development of culturally relevant trainings and technical assistance has helped
many tribes initiate improvements in investigative services. The National Indian Child Welfare
Association (NICWA) has been instrumental in developing curriculum and training on child
protective services that are tailored to the needs of tribal agencies. In addition, NICWA has
developed training curriculum for child abuse prevention (Our Children’s Future) and for culturally
specific parent education (Positive Indian Parenting). The National Indian Child Welfare
Association‘s partnerships with six of the ten National Resource Centers (NRCs) in Child Welfare
have enabled them to offer technical assistance to tribes on topics such as CPT development,
interviewing skills, child abuse and neglect assessment, intergovernmental agreement, and
investigation protocol development.
           Strong tribal court systems have also had an important impact. Where they have been
supported, tribal courts have been effective in prosecuting and deterring child abuse in tribal
communities. Some courts have adopted more traditional methods of addressing child abuse
that utilize elders and leaders from the community to influence positive changes in abusive
behavior. Tribal courts also support investigation by providing some oversight into the process
and failures that may occur.


Character and Criminal Background Checks
           Central to prevention efforts under the Indian Child Protection and Family Violence
Prevention Act is the requirement to conduct character investigations and criminal background
checks on BIA, the IHS, and tribal employees or individuals who are being considered for
employment with these entities. Character checks are generally rigorous investigations into the
suitability of a person to perform duties assigned in a job. In this case, the suitability pertains to
working with or having control over Indian children. This process can include interviews with the
subject of the character investigation, as well as interviews with others who have knowledge of
the subject‘s character. Criminal background checks generally use fingerprints and the name of
the individual to investigate whether he or she has a criminal record: arrests, warrants, or
convictions related to crimes that render the subject unsuitable to perform the duties of the job.
Both the BIA and IHS have regulations regarding the implementation of this requirement.
           The implementation of these character and background checks, however, is less certain
in Indian Country. In an article published in American Indian Report, Hinkle (2003) interviews
several people involved in or with knowledge of the implementation of these checks. Available
information from 1998 points to serious problems in completing these checks, primarily with the
BIA education employees. The article does not provide any information on how the checks are
being implemented elsewhere, such as in the IHS or in tribal settings.
           A more recent audit report from the U.S. Department of the Interior, Office of the
Inspector General (OIG) (2004), indicates that the BIA‘s system for pre-screening job applicants
still allows potentially unsuitable individuals to be hired. Additionally, applicants are often hired
without timely initiation of local law enforcement checks and before FBI checks are completed.
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Employees who are hired and then determined to be unsuitable for the job are not terminated in a
timely manner, with some employees retaining their jobs up to one year later.
           Although the Office of Indian Education Security Services is taking steps to improve the
background check process, the report also provides five recommendations to remedy the afore-
mentioned issues. These recommendations include transferring responsibility for initiating local
law enforcement checks and prohibiting employment of new education personnel until the FBI
check is finalized. For a complete list of recommendations, please see the OIG‘s full audit report
listed in the references section of this chapter.
           With regard to tribal communities, NICWA‘s experience is that many tribes remain
unaware of specific requirements under the law for character and criminal background checks
and the availability of resources to conduct them. In some instances, tribes have described the
considerable expense of doing a character check, which requires special expertise and
substantial time. Tribes that have tried to contract for character checks found out quickly that one
investigation can cost as much as $1,500 or more and take months to complete.
           Criminal background checks, which can be done through the BIA, in most cases, for a
small fee and take much less time to complete, have not been well publicized to tribes. Some
tribes are not aware that background checks are also required on prospective tribal foster and
adoptive homes. There are also technical issues involved in providing readable fingerprints for a
criminal background check, such as lack of skills training and proper equipment, that have
caused delays in some cases,. Contractors and volunteers have also been viewed as exempt in
many cases from the character and background checks, even if they are in contact with Indian
children. Overall, it appears that much more information and training is needed to achieve
consistent implementation of the character and background checks. Resources also seem to be
an issue for tribes, and, possibly, the BIA and IHS, in facilitating and completing these checks.
Without funding to support this requirement many tribes report having difficulty meeting the
expectations of the law.
           After the passage of the Adoption and Safe Families Act (ASFA) in 1997, states were
required to conduct background checks on prospective foster and adoptive homes for children
under state custody. Because state and county agencies also use tribally licensed foster and
adoptive homes for placements of Indian children under their custody, tribal child-placing
agencies would get requests for tribal homes to undergo state background checks. The state
background check would be in addition to tribal background checks that tribal foster and adoptive
families had already undergone. Federal law also requires that states view tribally licensed foster
and adoptive homes as equivalent to state licensed homes. This inadvertent conflict in policy
makes states unnecessarily cautious about using tribally licensed homes and has made it difficult
for Indian families who want to volunteer their homes to needy children. It has also created a
burden for tribal governments. It is our view that Congress never intended tribal foster and
adoptive homes to be subjected to a double standard and has primarily been concerned with

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making sure that tribal foster and adoptive homes receive a criminal background check, not with
who administers the check.


Traditional Healing Based Services
         Issues related to utilization and effectiveness of services by Indian families is a critical
factor in helping Indian children who are receiving treatment to heal. It is well known that many
tribal communities and families rely on natural helping systems or traditional healers in their
pursuit of healing, and that these treatment methods have been reported to be some of the most
effective for Indian families. Treatment services supported by the IHS, the primary provider of
                                                                                71
mental health services on tribal lands, use a primarily Western model                of providing mental health
services. Consequently, the limited services available in many communities may not be culturally
matched to the tribal community and their values, beliefs, customs, and traditions. This has a
tendency to limit the effectiveness of treatment for Indian children and families and provides a
disincentive for families to seek mental health services from providers that only offer services in a
mainstream model.
         What has begun to surface is more advocacy for the establishment of treatment services
that incorporate traditional healing. In 1999, the Substance Abuse and Mental Health Services
Administration (SAMHSA) and the IHS entered into a partnership called Circles of Care to
promote the development of more culturally appropriate children‘s mental health services in
Indian Country, to be designed around the systems of care principles that encourage community-
based and family-involved service delivery. (See Chapter 11, ―Child and Family Systems
Integration in Indian Country,‖ for a detailed description of the systems of care principles and
approach.) These agencies have funded 16 tribes in their efforts to plan for children‘s mental
health services, and the majority of these tribal grantees have gone on to implement their service
designs by leveraging federal, state, county, tribal, and private funding. The services that they
have designed and are now offering in several communities have had widespread community
support and have reached children and families in ways that were not evident with other mental
health treatment.


Family Group Decision Making
         Several tribes have begun to use various strengths-based approaches, such as family
group decision-making. Family group decision-making or family group conferencing is a practice
method in which all family members, including extended family, are brought together to create a
safety plan for a child. Research by the American Humane Association has recently shown that
this approach is at least as effective at providing child safety as other protective service
approaches and that the plans tend to be more stable and more likely to lead to permanency
options within the family (Merkel-Holquin, Nixon, & Burford, 2003). This approach is highly


71
 Western modalities most often used include counseling, psychotherapies, etc.
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promising for tribal communities but requires a significant level of training as well as policy and
procedure development. Expansion of this model could be accomplished with demonstration
projects, but without ongoing sources of support, sustainability will be a problem.


Systems Integration
           New models of systems integration and early intervention are promising developments in
Indian communities as well. Such approaches as ―wraparound,‖ ―systems of care,‖ and ―starting
early starting smart‖ have been emerging in tribal communities as demonstration projects. These
approaches are strengths-based, honor the extended family, and are holistic and congruent with
the cultures of most Indian communities. The experience with such approaches of the Tulalip
Tribes in Washington State and the Sacred Child project in North Dakota are documented in two
separate reports published by NICWA (Cross, Earle, Echo-Hawk Solie, & Manness, 2000;
Becker-Green, Cross, & Jones, 2003). (See Chapter 11, ―Child and Family Systems Integration in
Indian Country,‖ for a full discussion.)


Training and Technical Assistance
           Training and technical assistance is also important to ensuring that tribal programs have
access to information and skills development in treatment. NICWA has provided technical
assistance to the Circles of Care grantee communities since the inception of the program in 1998.
Assistance offered has included, but has not been limited to helping tribes assess their
community planning efforts; developing new, culturally appropriate methods for designing and
offering services; and providing support to parent groups that want to be more involved in
services for their children. At the University of Oklahoma, Delores Subia BigFoot, PhD has
developed a training program—Making Medicine—for tribal mental health providers that trains
them in culturally appropriate treatment approaches to working with Indian children who have
been victims of child abuse, primarily sexual abuse. To our understanding, this is the only tribally
specific children‘s mental health training program in the country.
           The resources available to tribes to obtain effective training in child protection
investigation, especially as it pertains to child abuse on tribal lands, are very limited. The NRCs
do some work with tribes, but often, the training is geared toward state child protection workers
and is missing critical information about policy and practice on tribal lands. The National Indian
Child Welfare Association has small subcontracts with three of the NRCs, but none of the
subcontracts cover child protection investigation. The NRC on Child Maltreatment has no staff
trained in tribal issues and has served only a token number of tribes since its inception. Recently
this resource center has been working on developing training materials for tribes and has turned
to Indian organizations for the expertise to do so.
           Some states offer opportunities for tribal workers to attend state training academies in
child welfare, but, again, these trainings are designed for state workers and do not address policy
and practice on tribal lands. The BIA and IHS offer investigation training from time to time, but
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the training is not consistently offered in all areas nor is it always available when tribes need it.
The National Indian Child Welfare Association also offers training for a fee on these types of
issues; however, the budget does not allow the organization to 1) reach all the tribes that request
the training or 2) offer scholarships to tribes that do not have funding to support staff travel and
training fees.
           The Department of Justice, Office of Victims of Crime (OVC) has contracted with the
Tribal Law and Policy Institute (TLPI) to provide technical assistance to Children‘s Justice Act
tribal grantees through the National Tribal Justice Resource Center. The Tribal Law and Policy
Institute focuses on, among other things, resources for tribal court systems, victims assistance
programs, and the improvement of both civil and criminal prosecutions in child abuse and neglect
in Indian Country. The Tribal Law and Policy Institute services reach 32 tribal grantees funded by
OVC.
           It is clear that training is critical to developing a skilled and informed child protection
service team. Child protection activities demand such a high level of skill, coordination, and
commitment that when training is not there, we often see a high staff turnover, as well as
investigations that miss opportunities to help protect children effectively with the least amount of
trauma to the child.


Conclusion
           The federal government has largely failed to provide for the protection of Indian children
for generations, and thus, is failing to fulfill its trust responsibility. Child protective services are
underfunded or not available; laws and jurisdictional conflicts are so complex as to be
compounding the harm to children and almost beyond utility or repair; federal funding streams for
child protection miss Indian children; and BIA funding is so restricted that child protection comes
last, after other essentials such as education, roads, and police protection. Tribes across the
nation want to do something about this growing problem. Major reforms are needed on several
fronts, and a bold new policy initiative in support of tribal children will be necessary to accomplish
them.




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                                                REFERENCES


American Indian Lawyer Training Program. (1988). Indian tribes as sovereign governments: A
           source book on federal/tribal history, law, and policy. Oakland, CA: AIRI Press.


Becker-Green, J., Cross, T., & Jones, L. (2003). The Tulalip Tribes’ starting early starting smart
           experience: Using the relational worldview model to create a project blueprint. Portland,
           OR: National Indian Child Welfare Association.


Cross, T.L. (1996). DCFS tribal capacity self-study final report. Portland, Oregon: National
           Indian Child Welfare Association.


Cross, T., Earle, K., Echo-Hawk Solie, H., & Manness, K. (2000). Cultural strengths and
           challenges in implementing a system of care model in American Indian communities.

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           Systems of Care: Promising Practices in Children’s Mental Health, 200 (1). Washington,
           DC: Center for Effective Collaboration and Practice, American Institutes for Research.


Cross, T.L., Earle, K.A., & Simmons, D. (2000). Child abuse and neglect in Indian Country: policy
           issues. Families in Society, 81 (1). 49.


Earle, K.A. (2000). Child abuse and neglect: An examination of American Indian data. Seattle,
           WA: Casey Family Programs.


Fox, K.A. (2003). The collection of data on the abuse and neglect of American Indian children.
           Child Welfare, 82, 707-726.


Hinkle, J. (2003). A law‘s hidden failure. American Indian Report, 19 (1). 12-14.


Mannes, M. (1993). Seeking the balance between child protection and family preservation in
           Indian child welfare. Child Welfare, 72 (2), 141-152.


Merkel-Holquin, L., Nixon., P., & Burford, G. (2003). Learning with families: A synopsis of FGDM
           research and evaluation In child welfare. Protecting Children, 18(1&2) 2-11.




                                Child Sexual Abuse in Indian Country
             Dee Subia Bigfoot, Terry Cross, MSW, ACSW, LCSW, & Kathleen Fox, PhD

                                                Abstract
           Child sexual abuse in Indian communities is a subject that is often not spoken about. Due
to the historical trauma and abuse suffered in government boarding schools, young American
Indian/Alaska Native schoolchildren often learned about relating to others through abusive acts
and were not given the opportunity to learn from positive familial relationships. The focus in Indian
Country, however, has turned to addressing and preventing child sexual abuse; as a result of this
focus, many promising programs being implemented in tribal communities. This chapter
discusses the historical impacts of abuse, examines the impact on families/communities when a
child discloses sexual abuse, and provides examples of prevention, training, and treatment
programs, which are available in tribal settings to address this issue.
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                                             Introduction
           Child sexual abuse is as old as the tales of the moon and the sun. It has occurred
throughout history. Most tribes have historical teachings that define acceptable social roles and
norms and that contain information on inappropriate sexual relationships between relatives or
clan/band relations. One common tale with many versions is the teaching of the moon and the
sun, a tale of a brother and sister who lost both parents before their adulthood. This story tells
that the brother and sister were very devoted to one another. As children growing up, they
provided company to one another and were the best of friends. As they grew older, the sister
longed for a companion and lover and poured out her desires and dreams to her brother. He
listened but offered nothing. One night, the sister had a visitor who became her lover. He would
only visit her at night, and he would not allow her to see his face. Each night he would return to
her, and they laughed and shared desires and dreams. She asked who he was, but he would
never tell her. She wanted to know. One night she smeared ashes on her fingers, and when her
lover came, she touched his face in the dark. The next morning, she looked about for someone
with ash marks. She discovered her brother was the one with ashes smeared across his face.
The brother, knowing he had done something very wrong, was ashamed and knew his only
recourse was to leave the tribe and never return. In his sorrow, he became the moon to hide his
face from his sister who became the sun. And so the elders tell the story that ―even today you can
see the ash marks across his face and that he never shines brightly when she is about but only
when she has returned to her home amongst the stars far on the other side, does the brother
shine.‖
           Native cultures carry specific teachings and taboos that speak strongly against such
abusive relationships. The story above, which clearly discourages sexual relations between
siblings, is a story that, while emphasizing the violation of sexual relations among family
members, has variations among many tribes. For example, the Trickster, Iktoma, or Vey-ho plays
the part of the violator of norms. When an individual who abused a child was called by those
names, it conveyed disgrace, a broken relationship, and unbecoming behavior (BigFoot, 1989). In
other ways, elders have discouraged dating among certain individuals by saying ―that‘s your
relative,‖ thus effectively terminating any budding romance.
           This chapter defines sexual abuse from both mainstream and tribal perspectives,
because sexual abuse is an issue that permeates all cultures and nationalities. Additionally, the
chapter explores the incidence of sexual abuse, describes characteristics of offenders and
victims, and presents both barriers to treating sexual abuse and also examples of strengths or
models that demonstrate success.


                                    Definitions of Sexual Abuse
General Definitions

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           The general definition of child sexual abuse is the illegal exploitation of and/or unwanted
sexual contact with a child for sexual gratification or stimulation by another person who is in a
position of power or control over the child, where consent may not or cannot be given, and where
force or threat of force may be involved (BigFoot & Braden, 2003; Berliner, Saywitz, Mannarino,
Cohen, & Judith, 2000; Finkelhor, 1979; Echohawk, 2001).
           Currently, federal laws and state laws prohibit sexual abuse of children (Myers, 1998).
Typically, it is assumed that adults are the general exploiters of children, but adolescents may
sexually abuse a minor who is of the same age, older, or younger. In approximately 1/3 of the
cases investigated, adolescents were the perpetrators (Chaffin, 2004). The kind of sexual
behavior that is directed toward children and that is illegal and inappropriate can include activities
such as fondling, intercourse, sodomy, and oral-genital stimulation. Also, the individual can have
the child engage in sexual behavior such as involving the child in prostitution or using the child‘s
image for child pornography. In addition, it may also involve unwanted sexual contact where
individuals expose themselves by exhibitionism or where individuals view children when they are
not aware, as in voyeurism (U.S. Department of Health and Human Services, 1993).
           A particular problem in defining child maltreatment has been that each discipline and
jurisdiction has its own definitions, which may not necessarily complement each other (Child
Welfare League of America, 1999). The legal definition of child sexual abuse is governed by the
parameters of the jurisdiction, and that jurisdiction will dictate the criminal investigation,
prosecution, and conviction. The criminal codes, statutes, and procedures that are in effect will
limit which law can or cannot apply within that jurisdiction.


Tribal Definitions
           Due to the various jurisdictions at tribal, city, county, state, and federal levels, the laws
vary depending on the status of the alleged offender (tribal member versus non-tribal member),
the location of the crime (trust versus non trust lands), the status of the victim (tribal member
versus non-tribal member), and the type of offense. The location of the offense may complicate
who has jurisdiction, and the jurisdiction will determine who investigates. In addition, with the
possibility of multiple prosecutions, there is a concern of double jeopardy. Should tribal courts
pursue criminal prosecution when tribal laws have been violated before or after the federal
prosecution is in process?
           Child sexual abuse was not specifically included in the Indian Major Crimes Act‖ until
1986 when the act was amended and identified as a major crime (Canby, 1998). Federal
agencies exercising jurisdiction in Indian Country are governed by these laws and statutes. These
laws can be problematic when different jurisdictions have different definitions and different
mandates to protect.
           Tribal land, trust land, allotment land, and reservation land under the federal trust
responsibility, which includes the reporting, investigation, and prosecution of crimes committed in
Indian Country, is governed by federal laws (Gardiner, 2002). Unfortunately, with conflicting
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jurisdiction and various statutes leading to different definitions and interpretations of who has
jurisdiction, offenses occurring in Indian Country often result in duplications, delays, or complete
failures in the investigation and prosecution with legal or law enforcement authorities assuming
another law enforcement agency will act on the offense (Echohawk, 2001).
           Definitions of sexual abuse by other disciplines, such as social work, medicine, or mental
health, may not be concerned about jurisdiction but rather with the physical or emotional well-
being of the child. Mental health services offered may include services that are not as concerned
with making the offender accountable and may be offered independently of actual evidence of a
crime. However, prosecutors may delay mental health treatment if they are concerned that the
testimony of the child will be perceived as being tainted by treatment if they assume that
treatment will distort a child‘s perception of the events. An expert witness can provide sufficient
and accurate information on immediate reactions to trauma and how children can react when
treatment is effective without distorting the child‘s ability to testify.
           Many federal jurisdictions are establishing Memorandums of Agreement (MOA) that
define the roles of the U.S. Attorneys, State Child Protective Services, tribes, the Bureau of Indian
Affairs (BIA), the Indian Health Service (IHS), and other federal, state, and tribal agencies
involved in child sexual abuse in Indian Country. These MOAs have helped to eliminate the
hesitation from some law enforcement agencies when there are questions of who has jurisdiction
(United States Attorney‘s Office Federal Districts of Oklahoma, 2003) and where to take an Indian
child when disclosure occurs.


                        Incidence of Child Sexual Abuse in Indian Country
           Child maltreatment of American Indian/Alaska Native children has been documented in
state statistics, which are collected by the National Child Abuse and Neglect Data System
(NCANDS) of the Department of Health and Human Services (DHHS). DHHS maintains a
website (National Clearinghouse on Child Abuse and Neglect) regarding data on child abuse and
neglect and stores data at the National Data Archive on Child Abuse and Neglect at Cornell
University. Since the majority of American Indians/Alaska Natives live outside of trust lands and
are under the jurisdiction of states, the number of child sexual abuse cases involving American
Indians/Alaska Natives can be considered only accurate for those living off reservation. On-
reservation rates, therefore, will need to be teased out. Approximately 30% of the American
Indian/Alaska Native population live on trust/reservation land and are not subject to state
jurisdiction or reporting. Concerns about reliable statistics have been voiced due to the lack of a
central repository not being available for American Indian/Alaska Native data, which makes it
difficult to determine current and accurate rates for on-reservation populations (Earle, 2000) (For
more information on this topic, please see Chapter 3, ―Data Issues Regarding Abuse and Neglect
of American Indian/Alaska Native Children‖). The Indian Health Service has attempted to gather
health statistics with their in-house publication Trends in Indian Health, which unfortunately does

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not include child maltreatment or child sexual abuse rates. Some American Indian/Alaska Native
specific data has been gathered but is still limited due to the lack of annual compilation.
           According to Echohawk (2001), there is a question of whether the incidence of child
sexual abuse in Indian Country actually tripled in the five-year period between1989 and 1994 or
whether more awareness of the problem has merely increased reporting. As stated by Echohawk
(2001), the BIA Criminal Investigators Division ranked sexual abuse of a minor as the most
frequent offense reported in 1993 compared to a year later when sexual abuse of a minor
dropped to third in the ranking of offenses with a total of 171 reports investigated. Discrepancy in
the reporting became highly problematic when, in 1993, BIA Law Enforcement investigated only
287 of the 4,174 reports of sexual abuse received by BIA Social Services. If, according to the
national average, 1/3 of sexual abuse reports are substantiated, that would indicate a difference
of 1,301 substantiated cases versus the 287 substantiated cases reported by the BIA. This
discrepancy is also reflected in the report indicating that there has been a steady yearly increase
since 1989 of cases of child sexual abuse in Indian Country (Echohawk, 2001). The National
Indian Justice Center (1991) reported rates of child sexual abuse that varied dramatically among
three different data sets collected from the BIA and the IHS. Sexual abuse made up 26% of
reports from the BIA Education data set, 9% of reports from the Albuquerque IHS data set, and
14% from the Alaska IHS data set (Earle & Cross, 2001).
           In 2001, there were a total of 879,000 child victims with 10% of the total cases counted
as child sexual abuse. Based on these general findings, while making up less than 1% of the total
child population ages 14 and younger, American Indians/Alaska Natives made up 2% of the
reported victims of abuse (U.S. Department of Health and Human Services, 2003).
           Within the United States from 1992-1995, American Indians/Alaska Natives and Asians
were the only racial or ethnic groups to experience increases in the rate of abuse or neglect of
children under age 15 as measured by incidents recorded by state child protective service
agencies. As stated above, these statistics are problematic as data from Indian reservations are
not necessarily included. When making comparisons between states with high American
Indian/Alaska Native populations using data from the 2000 U.S. Census, the following rates can
be computed:


           Alaska
          9.2% of Alaska‘s American Indian/Alaska Native population is five years and under, as
           compared to 7.6% for all other racial groups (the age group most at risk for child neglect).
          Approximately 19.8% of Alaskan children are American Indian/Alaska Native.
          American Indians/Alaska Natives account for 46.7% of all annual confirmed maltreatment
           reports in Alaska (Children‘s Bureau, 2001).
          9.4% of all Alaska‘s reported child maltreatment cases are child sexual abuse cases.


           California
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          8.0% of California‘s American Indian/Alaska Native population is five years and under
           compared to 7.3% for all other racial groups (the age most at risk for child neglect)
          Approximately 1.2% of California children are American Indian/Alaska Native
          American Indians/Alaska Natives account for 0.8% of all annual confirmed maltreatment
           reports in California (Children‘s Bureau, 2001).
          8.3% of all California‘s child maltreatment cases are child sexual abuse cases.


           Minnesota
          9.5% of Minnesota‘s American Indian/Alaska Native population is five years and under,
           as compared to 6.7% for all other racial groups (the age group most at risk for child
           neglect).
          Approximately 1.8% of Minnesota‘s children are American Indian/Alaska Native.
          American Indians/Alaska Natives account for 6.9% of all annual confirmed maltreatment
           reports in Minnesota (Children‘s Bureau, 2001).
          9.2% of all Minnesota‘s child maltreatment cases are child sexual abuse cases.


           Montana
          10.1% of Montana‘s American Indian/Alaska Native population is five and under, as
           compared to 6.1% for all other racial groups (the age most at risk for child neglect).
          Approximately 8.1% of Montana‘s children are American Indian/Alaska Native.
          American Indians/Alaska Natives account for 21.4% of all annual confirmed maltreatment
           reports in Montana (Children‘s Bureau, 2001).
          14.9% of all Montana‘s child maltreatment cases are child sexual abuse cases.



           Oklahoma
          9.5 % of Oklahoma‘s American Indian/Alaska Native population is five years and under,
           as compared to 10.4% for all other racial groups (the age groups most at risk for child
           neglect).
          Approximately 11.0% of Oklahoma‘s children are American Indian/Alaska Native.
          American Indians/Alaska Natives account for 13.6% of all annual confirmed maltreatment
           reports in Oklahoma (Children‘s Bureau, 2001).
          7.6% of all child maltreatment cases are child sexual abuse cases.


           South Dakota
          11.7% of South Dakota‘s American Indian/Alaska Native population is five years and
           under, as compared to 6.8% for all other racial groups (the age group most at risk for
           child neglect).
          Approximately 13.7% of South Dakota‘s children are American Indian/Alaska Native.
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          American Indians/Alaska Natives account for 45.1% of all annual confirmed maltreatment
           reports in South Dakota (Children‘s Bureau, 2001).
          4.6% of all child maltreatment cases are child sexual abuse cases.


           Washington
          8.2 % of Washington‘s American Indian/Alaska Native population is five years and under,
           as compared to 6.7% for all other racial groups (the age group most at risk for child
           neglect).
          2.1% of Washington‘s children are American Indian/Alaska Native.
          American Indians/Alaska Natives account for 6.7% of all annual confirmed maltreatment
           reports in Washington (Children‘s Bureau, 2001).
          6.7% of all child maltreatment cases are child sexual abuse cases.


                                     Characteristics of Offenders


Familial and Non-Familial Offenders
           In most cases of child sexual abuse, the victim knows the offender, the offender is a
close family member, or the offender is a member of the family‘s extended network.
           Research that specifically enumerates the offenders in American Indian/Alaska Native
populations is scarce. However, a study conducted by Robin, Chester, Jaranson, and Goldman
(1997) with 582 southwestern American Indian tribal members reported that 78% of the abuse
was by immediate, step, or extended family members, and only 2% was by strangers.
Approximately 49% of participants reported being abused by at least two different perpetrators. In
a study involving the Division of Indian Work program (Carter & Parker, 1991), the researchers
surveyed one county in Minnesota that represented the largest urban concentration of American
Indians/Alaska Natives in the U.S. at that time. This study discovered 41 cases of incest over an
18-month period with perpetrators including fathers, stepfathers, uncles, brothers, and non-
relatives, such as a mother‘s boyfriend or partner. Fathers and other persons in parental roles
accounted for 40% of all cases.
            Of interest is the number of perpetrators to which each victim was subjected. Almost
70% of the victims in this study had two or more perpetrators. In cases with single perpetrators
(27%), participants reported that their siblings were generally the offenders. This would suggest
that the majority of the perpetrators were family members (40% played a parental role, and 27%
were siblings) (Carter & Parker, 1991). This rate is considerably higher than the rate for the
general population. Specifically, in focusing on sexual abuse, the National American Indian
Adolescent Health Survey, administered from1988–1990, provided, among other items, rates for
adolescents who reported sexual abuse (Blum, Harmon, Harris, Bergeisen, & Resnick, 1992).
According to adolescent self-reports, 10% who completed the survey indicated they had
experienced sexual abuse. In a survey conducted by the National Indian Justice Center (NIJC),
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among sexually abused children, females were more represented (70.8%) compared to males
(22.8%), and the offenders were more likely to be biological relatives (55%) (Chino, Melton, &
Fullerton, 1992).


Adult Offenders
           Not all offenders have a history as victims of child sexual abuse; however, they may have
a history of child neglect or physical abuse. The majority of offenders have no abusive history at
all. American Indian/Alaska Native adult offenders may differ from mainstream offenders since
the collective history of American Indian/Alaska Native people typically includes boarding school,
an increased likelihood of being placed out-of-home, the loss of a parent, a history of alcoholic
behavior, and other traumatic events such as witnessing family violence. There is limited
research available about American Indian/Alaska Native adult offenders and their history and
                                               72
what can be determinates of behavior.               Several American Indian/Alaska Native communities
have begun the task of offender management. In one tribal community, the returning convicted
adult offenders have started their own support group to police themselves. They include
traditional teachings of accountability and honor as part of the treatment. Another tribal
community has a formal treatment program in their behavior health center with monitoring by the
county probation officers. Traditional sweat lodges are part of another informal treatment effort in
the southwest.



Adolescent Sex Offenders
           Much less is known about adolescent sex offenders in Indian Country. It can be
speculated that a significant number of adolescent sex offenders may have a history of sexual
abuse, have a developmental disability, and have very limited access to treatment. The numbers
of cases presented to the U.S. Attorney Offices for the three districts in Oklahoma estimate that
child sexual abuse accounts for 75% of the crimes committed on Indian land (Center on Child
Abuse and Neglect, 2000). If the national average for adolescent offenders can be applied to
Indian Country, then approximately 1/3 of all child sexual abuse is committed by American
Indian/Alaska Native adolescents (National Center on Sexual Behavior of Youth, 2004).
           Problems that occur in Indian Country with adolescents when federal child sexual abuse
cases are tried may include: 1) limited prosecutions, 2) little or no community-based treatment,
and 3) very limited availability of juvenile treatment or detention facilities. Rehabilitation is typically
the goal when dealing with juvenile offenders, And most juvenile sex offenders can be
successfully rehabilitated within the community.

72
     See the American Indian/Alaska Native American monograph series entitled Abusers Who Were Abused: Myths and
Misunderstanding at http://3w.ouhsc.edu/ccan. For additional material on adult offenders, see the Center for Sex Offender
Management located at http://www.csom.org.


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Status of the Offender
           Historically, a family member in Indian Country could be ―thrown away.‖ The only time a
person was thrown away was due to a serious violation of a norm, and by being thrown away, a
person was no longer visible and was beyond the sanctuary of the family and tribe. Banishment is
still practiced in certain tribal societies, but due to the greater number of losses by suicides,
homicides, car accidents, incarceration, and drug abuse and less social control, turning away a
family member has different consequences. Tribal communities face a dilemma when
accountability for criminal behavior and violations against children are weighed against the belief
that the reason the violation occurred is due to loss of respect for relationships (Adolescent Sex
Offenders, 1999). Honoring one‘s relatives is a commonly held virtue in Native communities; in
Indian communities, it is believed that violating a child dishonors him or her. The legacy of
boarding schools, which fostered the climate of sexual abuse, also lessens the opportunity to
understand tribal family relationships. American Indian/Alaska Native people face a dilemma—
should family members whose own history is complicated by abuse be thrown away, or will
incarceration make rehabilitation possible?
           The status of the alleged offender can complicate what should be done for the safety and
welfare of the child and community. Spiritual leaders, tribal officials, non-tribal citizens, or any
combination of people of high standing within communities or governments can inadvertently
create an atmosphere where negative actions by family and community members are taken
toward the abuser . In one American Indian/Alaska Native village, the alleged offender was a
critical provider in the subsistence living community. He owned the only gasoline storage tanks
and supplied critical snowmobile parts. His accusers were three 13-year-old female youth who
endured name calling, rock throwing, and confrontation even from elderly American Indian/Alaska
Native women. The alleged offender was convicted and sentenced to serve a lengthy prison term.
Once he was incarcerated, several other adult females disclosed that as children he had abused
them. The community survived without him, but initially, the only ones who supported the youth
were their three mothers. The immediate reaction to the abuse was that most of the community
members were threatened by not having the means to survive since so many depended on the
offender.
           Spiritual leaders who abuse present a similar dilemma. They are the keepers of the
traditions and the caretakers of the fire, the drum, or the lodge. Yet their choice to harm a child
and to hide behind tribal traditions and spiritual teachings creates an additional issue for tribal
communities. Several recent cases have produced spiritual leaders or tribal historians as the
offenders. Many of these individuals are quite old and committed their offenses at an earlier time
but overall have many victims. In these cases, the court gave consideration to the age of the
offender and did not require jail time. There have been cases when the spiritual leaders justified
their actions as being part of the teachings, and the community, in acquiescence to the offender‘s

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interpretations, did not know how to challenge them. Fortunately, the courts would not accept that
as a defense.
                   The status of the offender is not limited only to what position he or she holds but
also his or her status upon release. American Indian/Alaska Native people tend to return to their
communities. The Peacemaker Court is one option that helps bring accountability and returns
balance after an assault. In Indian Country, the Peacemaker Court has been established to
address relationships among all the participants in the family circle, including the victim, offender,
and others who have an interest in the family unit in the more traditional way. Accountability by
the offender is part of the Peacemaker Court (Melton, 2000).
           In some reservation communities, notification laws have been enacted. It is quite
common to see public posters displaying sex offenders in very prominent locations. However, one
problem has surfaced with non-tribal individuals who are not subject to tribal law but live within
the boundaries of the reservation. In some areas where non-Indians can purchase homes within
tribal boundaries but not necessarily on trust land, allowing non-Indian offenders to take up
residence outside the jurisdiction that convicted them, there has been the question of who has
enforcement jurisdiction regarding notification and registry requirements.


                            Characteristics of Victims of Sexual Abuse
           Lists or examinations currently lack statistical power and research with American
Indian/Alaska Native families to validly verify child sexual abuse in tribal communities; however,
two primary indicators are as follows: 1) sexually transmitted diseases in young infants and
children and 2) pregnancy in adolescents when no other known causes have been documented.
Additional behavioral indicators for young children may include excessive masturbation and/or
advanced sexual knowledge or behavior. In pre-adolescents and adolescents, there may be signs
of depression, suicidal gestures, or chronic runaway behavior. Some children may have frequent
psychosomatic complaints or have a change in academic performance. It should be understood
that the behavior repertoires are limited to children who are reacting to negative environmental
stimuli; similar dysfunctional behaviors can have varying origins. Many studies have found that
victims of child sexual abuse are at greater risk for mental health problems and diminished social
functioning (Kenney, Reinholtz, & Angelini, 1997). Adolescents and children with a history of
sexual abuse often report various experiences, including sex-related fears, high anxiety, intrusive
thoughts, feelings of stigmatization, global adjustment problems, shame or guilt, low self-esteem,
feelings of powerlessness, depression, guilt, alienation, behavioral and academic problems,
illegal substance use, poor family relationships, prostitution, or running away, with a
predisposition for repeated victimization (Willis, Dobrec, & Sipes-BigFoot, 1992; Friedrich,
Urquiza, & Beilke, 1986; Wolfe, Gentile, & Wolfe, 1989; Kenney et al., 1997; Boyer & Fine, 1992;
Small & Kerns, 1993; Muran, 1993).
           Characteristics of children who have been sexually abused cut across ethnic and racial
groups. A history of childhood sexual abuse was a risk factor for a southwestern American
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Indian/Alaska Native population that experienced multiple psychiatric problems, including alcohol
dependence and abuse, into adulthood (Robin et al., 1997). Levels and types of symptomatology,
such as sleep disorders and somatic complaints, were significantly higher among Canadian
Indian women who were sexually abused in childhood compared to similar Caucasian women
who had also experienced childhood sexual abuse (Barker-Collo, 1999). However, Roosa,
Reinholtz, and Angelini‘s (1999) study, which included American Indian/Alaska Native women, on
the relationship between child sexual abuse and depression, found that the strongest predictor of
adult depression was child physical abuse versus child sexual abuse.


Children with Sexual Behavior Problems
           Indian Head Start programs and elementary schools are increasingly calling for
interventions for children who are engaging in sexual behavior that is highly uncomfortable for
other students and school personnel (Bigfoot, Bonner, & Willis, 1995). It is typical to assume that
children who are demonstrating such behavior are victims of sexual abuse; however, not all
children who display sexual behavior problems have a history of child sexual abuse. This may not
be the situation with many American Indian/Alaska Native children who may have a family history
of child sexual abuse and may be part of a community where a boarding school existed that had
child victims. Some of this historical learned behavior may contribute to children engaging in
sexual manners toward students or other individuals.
           Children with sexual behavior problems are children 12 years of age and under who
demonstrate developmentally inappropriate or aggressive sexual behavior. This definition
includes self-focused sexual behavior, such as frequent public masturbation, and intrusive or
aggressive sexual behavior toward others that may include coercion or force. Although the term
―sexual‖ is used, the children‘s intentions and motivations for these behaviors may be unrelated to
sexual gratification. Some children who have been sexually abused have inappropriate sexual
behaviors, and others have aggressive or highly problematic sexual behavior. However, it should
be noted that the majority of children who have been sexually abused do not have subsequent
inappropriate or aggressive sexual behaviors. Professionals and parents may have concerns
about whether the behavior is problematic, whether the child should be referred for treatment,
and when an incident should be reported to the proper authorities (National Center on Sexual
Behavior of Youth, 2004).


Understanding the Process of Disclosure and Why Children Recant
           A young American Indian/Alaska Native mother‘s greatest fear can be that someone
sexually abused her child. How parents and caregivers react to the disclosure of sexual abuse
can influence the child's adjustment to the disclosure and to the abuse itself. Many children who
are sexually abused may not display any adverse reaction as a result of the abuse. This is
dependent on any number of variables including the following:

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              The frequency of the abuse (one incident versus several)
              The age of the child and the age of the perpetrator
              The relationship of the perpetrator to the victim
              The use of force, threats, coercion, and/or intimidation
              How frightening the event or events were
              The kind of abuse and the degree of penetration
              The degree of physical damage or pain inflicted
              The degree of shame and confusion experienced
              The number of perpetrators
              The number of individuals knowledgeable about the abuse


           Since most children disclose accidentally, the response by the immediate caregiver can
set the emotional tone. The parent may be so devastated by the disclosure that his/her concern
for the child becomes secondary.
           Research by Sorensen and Snow (1991) on children‘s disclosure of confirmed sexual
abuse indicates that 72% of the children involved in sexual abuse cases denied or recanted their
stories even when confirming evidence was presented. This statistic includes instances where
80% of the offenders confessed or entered a legal plea, when convictions in criminal court
occurred in the additional 14%, and when medical evidence was highly consistent for the
remaining 6% of the cases. For those children who disclosed the abuse almost 78% issued a
tentative disclosure later. Almost 22% of all the children recanted and denied the abuse
notwithstanding the confirmation by the offender. Implications of the research indicate that only
one in ten children disclosed without denial or tentative features, that disclosure is a process and
not a single event, that investigators can get a better response from children in an active stage of
disclosure, and that the majority of disclosures (75%) are accidental. Sufficient time must be
allowed for the disclosure process since the typical response is to deny that the abuse happened,
even with multiple events occurring.


               Barriers to Prevention, Recognition, and Treatment of Sexual Abuse
           Sexual abuse in Indian Country is complicated by tribal custom related to attitudes toward
sexuality, trust, respect, and honor. In addition, sexual abuse of American Indian/Alaska Native
children has been affected and exacerbated by influences outside the culture. Sexual abuse was,
for example frequently learned from teachers and others at boarding schools, which were located
away from the protection of family and tribe. The negative influence of the boarding school era is
discussed in greater detail in other chapters of this publication.


Assumptions of American Indian/Alaska Native Families that Do Not Discuss Sex
           It has been repeated many times that American Indian/Alaska Native cultures do not talk
about sex (MET, 2003). The word ―sex‖ was not known and not used because it is a
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European/English term. American Indian/Alaska Native cultures have many references to
―relations between couples‖ or ―laying together‖ and also have terms such as ―being bothered‖ or
―doing that down there‖ that convey unacceptable sexual behavior. Broaching the issue of not
talking about sexual relationships has been the result of many influences that have tilted the
discussion of what goes on between and among family members. Historically, some American
Indian/Alaska Native families lived in enclosures that housed from five to six family members in
the willow bark huts of the desert of California; 30-60 extended family members of the earth
lodges in the upper regions of Minnesota and Michigan. There were as many different kinds of
dwellings as there were climates to live in. It was in and among those dwellings that family
members engaged in living activities. They cooked, ate, slept, told stories, held ceremonies, had
sexual relations, and participated in other activities that occurred in the confinement of closed
quarters. Sleeping arrangements, whether with a small family or larger compound, required the
cultural traits American Indian/Alaska Native people are noted for—respect, boundaries, and
teasing. There are many stories told of an Old Indian Grandmother having the young girls sleep
beside her while the young men slept next to the grandfather, and the couples slept with their
young children in-between.
           At an early age, children were exposed to male-female relations and were also taught
about respect and the appropriate acknowledgement of one‘s relations; this acknowledgement
kept boundaries in place. Teasing by elders was directed toward young men and young women
to define those boundaries, while same age teasing was used to explore the limits of disrespectful
behavior. Within these boundaries, sexual activity was engaged in, known, and practiced.
Children were teased, taught, guided, and informed about sexual relationships by their siblings,
parents, grandparents, and extended family. No one talked about ―sex‖; rather, they talked about
relations and relatives. Sexual activity was accepted as part of living, and social norms kept the
behaviors in bounds. Violations certainly occurred; however, societies or clan members
administered severe consequences, and reparation was expected and practiced. Survival
depended on the cohesiveness of the family group so that a violation threatened both the
individual and the stability of the unit as a whole.


Issues of Trust
           Considerations should be given at each stage from disclosure to investigation,
prosecution, and intervention because mistrust and suspicion can surface at any point. Each
stage should be reviewed as to what impact it may have on the family, how much support is being
provided, and the degree of information being shared with the family. It is equally important that
the quality of the investigation be above reproach and that the tribal leadership and community
response be highly supportive of accountability toward children. A critical feature is the level of
confidence in the judicial system and the investigative process. If prior law enforcement activities
have been biased or have lacked professionalism, families may question the quality of the
investigation and the fairness of the system. American Indian/Alaska Native families are very
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suspicious of law enforcement since many of these families are struggling with substance abuse,
child truancy, domestic violence, prior incarcerations, or any number of conflicts that increase
contact with law enforcement. This makes even supportive contact with law enforcement highly
suspect.
           Recent events of unacceptable conduct on the part of tribal law enforcement has required
that the BIA resume control of law enforcement duties on several reservations, leaving tribal
members to questionable investigations conducted by the tribe. Events like this contribute to the
lack of confidence with tribal and federal law enforcement and confirm assumptions about the
unfairness and bias of these entities.


Families Confronted with Sexual Abuse Disclosure
                   It has been said that respect and honoring are to be two of the core values
among most, if not all, American Indian/Alaska Native cultures (BigFoot, 1989). It is very hard to
understand how sexual abuse occurs if each parent is truly respectful of his/her children and
honors their lives. It is typical of most parents to disbelieve that someone would deliberately and
intentionally commit a sexual act toward their own child. This abuse may symbolize or signify a
dramatic breakdown of family norms of respect and honoring. The parent may experience the
disintegration as a traumatic defeat and embarrassment. He/she may be overwhelmed by the
prospect. Therefore, when a child discloses an inappropriate and illegal sexual contact, it is quite
common to question if it really happened
                   Individuals find it hard to believe that a family member or someone they are
intimate with would sexually abuse a child. Parents and caregivers have been accused of denying
or being in denial when they profess the innocence of someone who is alleged to have sexually
abused a child. Against this background is the historical conflict of child removal and inequitable
placement of American Indian/Alaska Native children outside the family. American Indian/Alaska
Native families are confronted with a legacy of maltreatment toward their children from boarding
school personnel and the formal educational system, foster care placements and the child welfare
system, residential treatment and the mental health arena, and incarceration and juvenile justice
arenas. Added to this trauma is distress and suffering from generational displacement and
relocation, inconsistent governmental policies of funding and misplaced priorities, and any
number of chaotic attempts that have failed children by not addressing their medical, social,
spiritual, physical, emotional, and familial needs. Families are then asked to believe in the
systems that contribute to the chaos.
                   As evidenced above, American Indian/Alaska Native families with a history of
abusive behaviors would find it particularly hard to be cooperative and open to questions of the
quality of care given to their children. When confronted with questions of sexual abuse, the
combination of immediate shock, generational trauma, and distrust of governmental intrusion
places an American Indian/Alaska Native family in a situation of being less willing to be open and
forthright with allegations of abuse. This climate has added to the assumption that American
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Indian/Alaska Native families are in denial about sexual abuse. Some may be, but consideration
should be given to both the historical and current external conditions that may heavily influence
the levels of cooperation and confidence in a system that has been a deterrent to families in the
past.


Historical Influences on Sexual Abuse in Indian Country
           The influences of Protestant and Catholic religious views in boarding and mission schools
and the missionary work within American Indian/Alaska Native communities created the
impression that Indian people did not talk about sex and, therefore, did not acknowledge sexual
activity. The shame of sexual abuse within the boarding and mission schools certainly created a
disgraceful atmosphere and silenced any attempts to address appropriate and normal curiosity
about sexual development and understanding. There were no grandmothers in place to protect
children when missionary pedophiles visited children at night, and children were not protected
within the government system that required families to relinquish them (Colmant, 2000). The
legacy of child sexual abuse not only took away the innocence of youth but also took away the
foundation for sharing information about sexual relations, respect among adult partners, and the
boundaries of exploration that children would normally engage in to understand themselves as
sexual beings.
           It is almost impossible to adequately explain or capture the nature and extent of assaults
and trauma experienced by American Indian/Alaska Native families. This trauma was affected by
the lack of reporting criteria, the lack of protocol, and the question of jurisdiction for investigation,
prosecution, and conviction of alleged offenders (Wasserman, 1998). The attention to child
sexual abuse in Indian Country has been a relatively recent phenomenon.



                       Initiatives to Address Sexual Abuse in Indian Country


Recent History of Initiatives
           Echohawk (2001) provides an excellent account of the more recent history of child sexual
abuse starting from 1980 forward. In 1989, the Senate Select Committee on Indian Affairs formed
a Special Committee on Investigations for a hearing devoted to testimony on child sexual abuse
in BIA schools. This committee concluded that the BIA was plagued by mismanagement and had
permitted a pattern of child abuse by its teachers to develop in all the BIA schools nationwide and
for years had failed to investigate allegations of sexual abuse committed by its own teachers. The
BIA did not require even a minimal background check into potential school employees and did not
follow up on allegations of child abuse reported by parents, previous employees, or students
(Echohawk, 2001).
           The final report indicated that, as of 1989, no federal reporting law existed that applied to
federal schools on Indian land and that even when the BIA created an official policy on reporting
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child abuse and performing background checks in 1987, measures were inadequate. There were
no criminal penalties for non-reporting and no protection from slander suits for those who
attempted to report. In certain circumstances, federal employees were transferred from agency to
agency without being held accountable for their sexual behavior toward children, and no one
conveyed the parameters of their past behaviors to their new supervisors. Echohawk (2001)
explains that the special investigation revealed a pattern of callous disregard for the safety of
Indian children in BIA schools. Despite failing in these areas, BIA supervisors were never once
disciplined by their superiors.
           It became apparent that the federal system, the BIA and the IHS that serviced Indian
Country were not governed by mandatory reporting guidelines and had inadequate child
protection laws. As a solution to the abuses found in the BIA system, the special committee
recommended the passage of a newly created piece of legislation entitled the Indian Child Abuse
Prevention and Treatment Act. The act instituted mandatory child abuse reporting laws for the
BIA, IHS, and other tribal and federal employees in Indian Country. It would also impose criminal
penalties for non-reporting, require background checks on federal employees, provide immunity
from slander suits, provide funding for improved mental health treatment of abuse victims in
Indian Country, and establish a reliable database for child abuse statistics. The Indian Child
Protection and Family Violence Prevention Act passed in 1990 (P.L. 101-630) and provided for
the investigation and reporting of incidents of abuse and neglect on tribal lands. This law,
however, has been weakened by a lack of adequate funding (Cross, Earle, & Simmons, 2000).
           The recognition of issues of child sexual abuse became more prominent during the 80s
and 90s. Different organizations and different people came together to address child
maltreatment in Indian Country with the first National American Indian Conference on Child
Abuse and Neglect, organized in 1984 by the American Indian Institute at the University of
Oklahoma. Now organized by the National Indian Child Welfare Association (NICWA), the
conference has been held consistently since it was founded.
           There was still a need to be more inclusive of issues of adults who experienced trauma,
so the National Association for Native American Children of Alcoholics (NANACOA) established
itself and raised the banner that linked substance abuse and child sexual abuse in a very public
way (National Association for Native American Children of Alcoholics, 1988). Training programs,
self help systems, and other programs came into existence when NANACOA and SAMHSA
recognized the lack of services to adequately address the needs of individuals who had been
sexually abused as children by parents who were abusing alcohol. In response to this, the Fort
Peck Reservation became one of the first tribal communities to address child sexual abuse by
establishing a project to prosecute cases and also to treat child sexual abuse.
           Stories began to surface about the intergenerational abuse in families and communities.
Adults began to share their histories of living in boarding schools and the sexual abuse by
matrons, teachers, priests, and other students. It is not surprising that in1988, when the
information on multiple victimizations by pedophiles who were teachers surfaced, there was a
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vastly inadequate mental health response to the child sexual molestation. The severe lack of
clinical treatment for children and adolescents suffering from sexual abuse became evident. The
Office for Victims of Crime (OVC) provided Children‘s Justice Act funding for a select group of
tribal programs to serve these victims. This was the first effort by OVC to address child victims in
Indian Country. The desire to have states be responsive to tribal victims did not materialize, and
the OVC has evolved into a direct funding source to tribes for victim assistance services on
reservation or trust lands.
           The response to child sexual abuse has required more than just awareness. When the
multiple-victims cases surfaced in New Mexico, Arizona, and South Dakota, the IHS provided a
line item within its budget for six child sexual abuse programs. The need for these programs was
supported by evidence of children displaying inappropriate sexual behavior toward peers and
adults, young adolescents molesting younger siblings, the level of indiscriminate sexual contact
among adolescents, and an increased number of sexual abuse disclosures. The intent of the
programs was to provide a safety net for children who were victims of sexual abuse; however, the
determination of the safety net was left to the tribal administrators, and distribution of funding
became a source of contention. Some programs hired untrained treatment staff, other programs
hired advocates, and some determined that police investigators were necessary. Others were
trying to be more comprehensive with a goal of overall safety. Overall, there was the lack of
cooperation with other related tribal programs and a lack of professional staff to provide clinical
treatment. Also, the line of administrative supervision was unclear and for many programs,
licensed clinical supervision was almost non-existent. The child sexual abuse projects tried to be
everything for all children within the specific geographical area that they served. It was an
impossible task. These programs could not be treatment focused, provide advocacy, do
investigations, and serve the whole family including the offender, as they did not have the staff or
the funding sufficient for the needs that were multiplying with each new disclosure (BigFoot et al.,
1995).
           Multi-disciplinary teams became part of the pattern of response to child sexual abuse.
Typically a Child Protection Team‘s (CPT) focus is on all child maltreatment/child protective
service cases including those that may only result in a referral for supportive services. Multi-
disciplinary Teams (MDT) are designed for prosecution with members from the prosecutors office
(tribal, state, or federal), criminal investigation (BIA, FBI, tribal, state), medical (IHS, tribal, private,
non-profit), and social services (CPT, Indian Child Welfare). The most successful MDTs are
those that have a strong relationship with all members and in which all members are active.
Typically the BIA Social Services has the mandate for the CPT and the U.S. Attorney‘s Office has
the mandate for the MDT.


Programs Addressing Sexual Abuse in Indian Country
           Within the past decade, there have been programs created to focus on the problems of
sexual abuse in Indian Country. For example, the IHS and the OVC established the Medical
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Examiners Training Project (BigFoot & Powers, 2002) to train medical providers in the evaluation
of child physical and sexual abuse, in providing expert testimony in federal or state cases of
physical or sexual abuse, and in providing consultation to other medical providers concerned with
physical or sexual abuse of American Indian/Alaska Native children. In addition to this joint effort
by IHS and OVC, there is a forensic psychologist position jointly funded by them to assist in
interviewing children in sexual abuses cases in Indian Country.
            Recent efforts by OVC and the National Child Alliance (NCA) have seen an increase in
the number of Child Advocacy Centers serving Indian Country, with over 34 American
Indian/Alaska Native Child Advocacy Centers in various stages of development (B. Wilkins,
personal communication, 2004). The aim of the NCA is to have a central location for interviewing
                                                                                                                   73
children who are suspected victims of sexual abuse and to lessen the number of interviews.                              The
Children‘s Justice Act funding is to assist tribes to better develop, establish, and operate
programs to improve the investigation, prosecution, and handling of child abuse cases,
particularly cases of child sexual abuse (Office for Victims of Crimes [OVC], 2000).
            Organizations were formed, conferences were held, and programs were developed that
were directed at child sexual abuse. In 1994, the Children‘s Safe House of Albuquerque
developed a training tape for child sexual abuse interviews of American Indian/Alaska Native
children with disabilities entitled Forensic Interviewing of Young Children and Children with
Developmental Disabilities. Bitter Earth: Child Sexual Abuse in Indian Country, a 1993 video
funded by OVC and produced by the NIJC, discussed a Southwest tribe‘s response to child
sexual abuse and was intended to be used to encourage discussions about sexual abuse in other
communities. The NIJC also developed protocols and other publications on child sexual abuse for
distribution to tribes.
            During the last federal administration, a greater emphasis was beginning to be placed on
the issues found in Indian Country by Attorney General Janet Reno. Reno implemented the use
of special prosecutors, expanded the Department of Justice Child Exploitation and Obscenity
Section (CEOS), and began the tribal court project. She also instituted the Office of Tribal Justice
to coordinate all the Department of Justice (DOJ) programs in Indian Country. In 1992, the
Criminal Division of the DOJ expanded the role of CEOS to provide aggressive prosecution of
child sexual abuse in Indian Country and on federal lands. Their jobs were devoted to the
prosecution of sex crimes against children. In addition to these efforts, the Indian Child Protection
and Family Violence Prevention Act, which became the first real legislative attempt to address the
issue of child sexual abuse on Indian reservations (Echohawk, 2001). Unfortunately, funding has
not been forthcoming with this law.
            The above-listed efforts created the climate for the Indian community to address
individuals committing sexual offenses. The first ―Conference on Spiritual Healers Who Abuse‖


73
     A more comprehensive explanation of the Child Advocacy effort in Indian Country can be viewed in the Native
American Monograph Series at www.ouhsc.edu/ccan .
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was held in Minnesota and drew an overwhelming number of attendees. The conference has
been held almost yearly since 1998. For the past five years, the ―Effective Sex Offender
Management‖ effort has been functioning in a Southwest tribe with federal, state, and tribal
agencies working together to coordinate probation and other services for adolescents and adults
who have molested American Indian/Alaska Native children.


Clinical Treatment
           In April of 1990, an IHS survey identified only 20 clinicians who were specifically trained
to work with children working in Indian Country. Motivated by the Indian Child Protection and
Family Violence Prevention Act that required training but lacked the appropriate funding for these
efforts, IHS established two training programs through an interagency agreement with the
National Center on Child Abuse and Neglect. One training provided information to mental health
providers on treatments for adolescent sex offenders. Judith Becker, PhD, directed this program
out of Arizona State University, where she trained more than 150 providers from over 36
communities. The second training, called Project Making Medicine, was provided by IHS and
offered information on the treatment of child physical and sexual abuse. Funded in 1994, this
project has trained more than 100 licensed professionals, almost 100 paraprofessionals, and 25
traditional healers from over 150 tribal communities to treat child victims of sexual abuse. In
addition, more than 15,000 community members have attended community workshops on child
sexual abuse in Indian Country. Professionals are trained in a variety of topics, including abuse-
focused therapy, treatment of children with sexual behavior problems, understanding
trauma/abuse on brain development, parent-child interaction therapy, and working with non-
offending parents.
           The recent OVC treatment guidelines encourage evidence-based treatment intervention
for victims of abuse. OVC, IHS, and Substance Abuse and Mental Health Services Administration
(SAMHSA) are interested in treatment interventions that allow or encourage practice of American
Indian/Alaska Native traditional healing techniques. OVC allows Victim Assistance Programs
(VAP) to utilize traditional healers in ceremonies with the VAP covering the cost of the
ceremonies. As part of the National Child Traumatic Stress Initiative, SAMHSA has funded the
Indian Country Child Trauma Center (ICCTC) whose purpose is to bring evidence-based
treatment approaches together with traditional healing practices. Additionally, IHS has supported
Project Making Medicine for ten years because of their traditional approach and encouragement
in the inclusion of tribal specific teachings and beliefs. Project Making Medicine has been credited
with establishing a network of contacts and resources for mental health professionals serving
tribal communities where many of these individuals are the only providers. Participants
acknowledge that Project Making Medicine has advanced their professional training and provided
them an opportunity to increase their clinical skills to practice and also to train others in the
clinical treatment of child sexual abuse.

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           Project Making Medicine has been a significant training program in improving
professional training in child sexual and physical abuse. The project has set the standard for
training in child maltreatment in Indian Country; it has developed exceptional training material and
distributes the material nationwide, which allows the providers at the local level to receive quality
resources without cost to their programs. The core faculty of Project Making Medicine consists of
nationally known professionals who are regarded as experts in treatment and consultation of child
sexual abuse. A critical factor in the success of Project Making Medicine has been that it is based
on traditional teachings and traditional concepts of healing that American Indian/Alaska Native
people understand and acknowledge.
           The Children‘s Justice Act (CJA) program at the U.S. Department of Justice is designed
to develop demonstration projects in Indian communities for the purpose of improving the
investigation, prosecution, and handling of child abuse cases—especially cases of child sexual
abuse—in a manner that increases support for and reduces trauma to child victims. Victimization
of Native children includes child abuse, child sexual abuse, witnessing violent acts, and other
types of crimes where a child is present and, thus, affected. The Tribal Law and Policy Institute
(TLPI) has been providing Training and Technical Assistance (―T/TA‖) to tribal CJA grantees
since 2000. Services include identification of training and technical assistance needs, providing
skills-building training events for both regional and individual grantee sites, including development
of culturally specific curricula to assist tribes with multidisciplinary team development, and
developing Native specific practice tools and resource materials. The Tribal Law and Policy
Institute works with tribal CJA grantees to customize their protocols, policies, and procedures as
well as to customize tribal law and order code provisions to enable tribes to improve the
investigation, prosecution, and treatment of child abuse victims.


Prevention
           Most tribal communities are aware of child sexual abuse prevention programs such as
―good touch, bad touch‖ or other assault prevention school-based instruction. The intent of these
child-directed instruction programs is to teach children how to protect themselves and to know
what to do if they experience an actual or a threatened assault (American Professional Society on
the Abuse of Children [APSAC], 2004). Unfortunately, most of the prevention programs target the
victim (children) to defend themselves against sexual assault. Typically, a select portion of the
instruction may include an education component for parents that describes how to teach their
child to avoid abuse but does not necessarily instruct on who the offender may be.
           Children may gain knowledge about sexual assault when involved in these prevention
activities, but children have great difficulty understanding that abuse will likely occur by someone
they know. Typically, sexual assault is not committed by a stranger, and, therefore, the children
find it hard to protect themselves since they normally will not protest and may freeze as a reaction
to an approach by a familiar person (APSAC, 2004). One outcome of current prevention

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programs directed toward children has been that disclosure may come out due to a prevention
presentation; however, that does little to prevent the abuse from starting.
             Prevention in Indian Country has become part of the community consciousness since
Billy Rodgers started the Wellness Conference in the mid-1980s. His health promotions gave rise
to embracing a proactive stance and establishing the model for action prior to a harmful event.
This mindset created a climate of prevention in Indian Country with regard to issues such as
substance abuse, Fetal Alcohol Syndrome, and child abuse.
             In 1990, NICWA, with funding from the National Center on Child Abuse and Neglect,
developed ―Our Children‘s Future,‖ a child sexual abuse prevention curriculum for Indian Head
Start and preschool programs. Over the next several years, tribes located primarily in the
Northwest implemented the program raising awareness in their communities and among Indian
early childhood educators.
             Now the vision of many tribal communities is similar to the recent community training held
at Browning, Montana, where they address child sexual abuse with a public forum. At Rocky
Ridge on the Navajo Reservation, there was a week-long community effort to address child
sexual abuse. In Owyhee, Nevada, Tsaa Tammen Tutuani Manapuikha (Taking Care of Our
Children) focuses on appropriate and inappropriate sexual behavior of children.
             There is a growing wall of protection that is moving across American Indian/Alaska Native
communities from the interior of Alaska to the urban areas of Boston and Los Angeles, covering
the Great Plains, and dispersing among all the tribes that make up Indian Country. Communities
are talking about ―relations‖ being ―not good‖ and children being ―done by relatives,‖ and now is
the time to truly ―honor children,‖ by teaching parents to be better parents and to stop those who
                               74
―bother their children.‖            Child sexual abuse is being talked about in words that are familiar and in
ways that will help to heal and stop future abuse.




74
     This sentence contains intentional use of vernacular to illustrate terms/phrases used in tribal communities to talk about
child sexual abuse.
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                    Sovereignty, Cultural Competency, and Family Preservation
                                           John Red Horse, PhD
                                             Gordon Limb, PhD


                                                  Abstract
           This chapter focuses on sovereignty and its impact on cultural competency and family preservation
from an American Indian/Alaska Native perspective. Sovereignty recognizes that unique tribal histories
and social institutions are sources of strength that can guide the process of knowledge building.
Unfortunately, a historical glimpse into Indian-White relations reveals a consistent and general
pattern of government efforts to strip traditional, indigenous cultural institutions from American
Indian/Alaska Native life. With few exceptions, federal policies have deliberately undermined
Native life, and cultural repression continues to cause trauma that leads to identity crises, family
dysfunction, and community disintegration. But is all lost? No. Passage of the Indian Child
Welfare Act of 1978 (ICWA) and an understanding and respect for sovereignty grounded in
Native culture allows for a paradigm shift from deficit- to strength-based approaches. A new
mantra is posited for work with Native people: cultural competence seeks what works by
encouraging cultural empowerment to create cultural solutions.



                                                Introduction
           This chapter is organized into three main sections. Section one first begins with an
introduction and includes information on attributes of sovereignty within the contexts of extended
families and traditions. This section includes factors, such as extended kin systems that influence
value orientations and shape behavior. Next, a historical survey explores the general pattern of
government efforts to strip traditional, indigenous cultural institutions from American Indian/Alaska
Native life. This is not intended as a picture of woe, but rather is intended to give a sense of the
historical rise and prevalence of a theory of racism in Indian-White relations. The corollary to this
theory is cultural genesis. Cultural genesis is embodied in a theory of racism, because early
scientists conducting cranial studies and developing anthropological knowledge were guided by
ideas of racial superiority. Hence, every cultural attribute of American Indians, such as language,
religion, family life, and community system, accounted for the inferiority of tribal people. Next,
clinical legacies that ensued from racism are discussed. Two streams of knowledge are
considered: a spectrum of strengths and stresses experienced by extended families in American
Indian/Alaska Native communities and selected items drawn from ICWA. In addition, selected
clinical applications of cultural competence are discussed. This piece examines a few methods of
practice that are consistent with the theory of sovereignty and can thereby lead to social work
methods that reaffirm the structural and cultural integrity of American Indian/Alaska Native
extended family and kin systems.


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           Section two examines additional barriers that limit cultural competency and effective
family preservation services. Too often, service delivery systems have been developed and
applied with minimal regard for tailoring to specific Native population‘s strengths or needs. As a
result, mainstream services and service providers continue to function from a deficit perspective
and remain unaware of Native cultural practices.
           Finally, section three examines successful models shown to be effective with American
Indians/Alaska Natives. It is posited that rather than seeing traditional healing as an adjunct to
standard service provisions, services for American Indians/Alaska Natives should be founded on
cultural values with mainstream services as the adjunct.


Background
           Contradictions abound in the relationship between the federal government and American
Indians/Alaska Natives. From colonial times through the break from British rule, negotiations with
tribes provided vital support necessary to the survival of the fledgling United States. Tribes that
chose to align with the U.S. were treated as political equals. Once tribal support was not a vital
factor, tribes quickly became captive nations. Their treaty rights were readily violated; many were
removed from historic lands; all were prey to ―civilizing‖ efforts. Together, these historic political
actions assumed proportions of an "American Holocaust" propagated by an imperial, Euro-centric
culture. A new world order, one in which Native peoples were deemed lesser beings or savages,
as it were, who needed reeducation in order to enter civilization, was in the making.
           Forefathers of anthropology, a subject sometimes referred to as ―the handmaiden of
colonialism,‖ assumed the ―White man's burden‖ to gather and catalogue knowledge to prove the
superiority of the White race. Scholars mined American Indian/Alaska Native graves, gathered
skulls for specimens, and conducted laboratory tests to prove the intellectual inferiority of Natives.
When that procedure failed to yield appropriate findings, field studies were conducted to assault
basic cultural institutions of Native people. The scholars were joined by politicians who passed
the Civilization Fund Act in 1819, ordered removals so that savagism would not be proximate to
civilized people, and launched grand efforts, particularly in education and religion, to dismantle
American Indian/Alaska Native cultures.
           This paper, in many respects, briefly traces a recovery from the ―American Holocaust‖; it
highlights essential pieces of an arduous journey through a period of forced stripping away of
culture to a period of self-initiated cultural renewal. It discusses family preservation from a
standpoint of sovereignty and cultural competence. The concept of sovereignty, as used herein,
recognizes that unique tribal histories and social institutions are sources of strength that can
guide the process of knowledge-building. Hence, sovereignty assumes that cultural institutions;
value orientations; and traditional knowledge, attitudes, and beliefs are sources of strength; they
are repositories from which social work professionals can organize theoretical concepts around
human development and implement methodologies of intervention.

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Attributes of Sovereignty: Extended Families and Traditions
           Sovereignty is a primary marker in human behavior because it drives cultural institutions
that shape personal lifestyles, particularly family behaviors normative to the culture. Its attributes,
to say the least, are the beacons, the objective for those who plan interventions when family and
individual behavior go awry. An understanding of sovereignty and its application to Native tribes,
therefore, underlies any discussion of U.S. policies that impact American Indians/Alaska Natives.
           Most treatments of sovereignty in Indian-White relations deal with the arena of
government-to-government relations and the political status of tribes. Sovereignty as used herein,
however, refers to an internal domain that, as noted in Figure 3, equates to the nurturing system
in human development. This domain organizes around knowledge, attitudes, and beliefs that
influence American Indian/Alaska Native values and behaviors. Its impact on intercultural
relations has been profound because Native behavior is dramatically different from that of
mainstream society.


Figure 3: Aspects of Internal Sovereignty




                                  Nurturing Systems
                                  Extended Family and Kin System
                                  Clan
                                  Law/Custom
                                  Knowledge
                                  Attitudes
                                  Beliefs
                                  Spiritual Leaders/Elders
                                  Geographic/Political Characteristics
                                  Cultural Characteristics




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           Attneave (1982) notes these differences by comparing value orientations among the
American middle class and American Indian/Alaska Natives. In the domain of man's relation to
man, most American middle class people structure relationships in a linear fashion that places
emphasis on individualism, while Natives structure relationships in a field-sensitive manner that
emphasizes collateral relations with kin and community. In the domain of man's relation to the
universe, the American middle class assumes a role of mastery while American Indians/Alaska
Natives stress harmony with Mother Earth. Attneave, of course, recognizes that permutations
have occurred as a result of American colonialism but, generally, Natives still exhibit value
orientations and human behaviors that vary considerably from their White counterparts.
           These differences in core values still prevail because colonialism did not defeat the idea
of internal sovereignty among tribal people. Hence, their understanding of basic institutions such
as family and religion remains stable. Among American Indians/Alaska Natives, of course, the
extended family and kin system serves as a fundamental social unit. This is not similar to
Eurocentric models that organize extended families around three generations in a single
household. Native family and kin systems arrange as multiple households, and many small
reservation communities often consist of a single extended kin system. Family in these
communities is characterized by intense relationships. Indeed, during early childhood
development, one seldom connects in any significant way with non-kin.
           As one may presume in a society of collateral relations, a normative structure of
reciprocal responsibility exists. Thus, an intense constellation of roles occurs in which
grandparents, aunts, and uncles assume major responsibilities for parenting. For tribes that have
clan systems, family extends beyond blood kin, beyond tribal kin, and beyond human kin. Hence,
an Ojibwe of the bear clan is related to all bear clan individuals among all tribes. In traditional
ways, two individuals of the same clan could not couple or marry because they were kin. Many
American Indians/Alaska Natives today adhere to clan moral injunctions and follow the traditional
way of introducing themselves by tribe, tribal name, and clan.
           Traditional religion, while no longer a universal practice, is going through a renaissance in
many respects, often to the chagrin of mainstream society. Sun dances are held each year in the
northern plains; drum societies hold seasonal gatherings among woodland Natives; naming
ceremonies are held on a daily basis; and young Natives eagerly join with elders to learn about
the four directions, the sacred pipe, the circle, and the ties to Mother Earth. American
Indians/Alaska Natives, of course, have roots in Mother Earth and in historic lands. These
spiritual markers are vital components of daily life, and this sense of reverence has remained
intact. The Mandan at Fort Berthold, North Dakota, were uprooted from traditional lands to make
way for the building of Garrison Dam, yet they still grieve the flooding of the place where their first
people arose. The Apache challenge the University of Arizona for desecrating Mt. Graham, a
traditional sacred site, by putting in a telescope for university scientists.

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           These cultural and spiritual attributes of sovereignty became the target of colonialism.
Family structures that ostensibly encouraged communism, oral histories that fed pagan moral
injunctions, and religion that practiced devil worship had to make way for civilization. Native lands
and Native souls had to be put to good Christian use.


Historical Glimpse: Cultural Genesis
           The 19th century brought cataclysmic shifts in U.S. policy for American Indians/Alaska
Natives. The War of 1812 virtually ended the need for the U.S. to enter into political alliances with
tribes. Certainly, treaties were still negotiated for lands, but terms of those treaties were often
broken to allow White intrusions into Native lands. The treaty process was abandoned in 1871.
By this time, wholesale removals of tribes had occurred; generally, these removals were
accompanied by assurances of new lands, but even those promises fell by the wayside. The
legacy of this bait-and-switch land policy reverberates today; witness, for example, attempts by
Oneidas to recover historic lands or rejections by Oglala Lakotas to accept money as a
settlement for the Black Hills.
           The theory of racism was also fashionable. Its roots date from Colonial times when
American Indians/Alaska Natives were considered barbaric and in need of transformation,
particularly by the civilizing act of baptism into Christianity. The first U.S. edict in this vein was the
Civilization Act of 1819. During the latter third of the century, boarding schools organized around
a metaphor of oppression: ―kill the Indian, save the man‖ (Pratt, 1978). In between these periods,
science reared its ugly head. Bounties were set on American Indian/Alaska Native skulls that
were needed to conduct cranial studies. Military personnel and civilians alike started lucrative
ventures of grave mining so that enough skulls would be available to provide an appropriate
sample frame to conduct comparative studies into intelligence. Of course, the theoretical
assumption was that Natives were inferior to their White counterparts.
           By mid-century, cranial studies fell into disfavor and were replaced by cultural inquiries.
These were conducted through field studies by predecessors of the academic field of
anthropology and were also guided by a theoretical assumption that Natives were not equal to
Whites. Measures of different cultural ways were set up to articulate a range of cultures from a
low form of barbaric life to a high form of civilized life. American Indians/Alaska Natives were
placed in mid-scale and were considered not barbaric but not far removed either. And, of course,
Whites—even those who exhibited barbaric tendencies—were placed at the top of the scale.
They were the personification of civilization. They had all the markers: Christian dedication,
rugged individualism, tilling of the land, and education in White social discourse.
           Cultural cleansing was deemed necessary so that American Indians/Alaska Natives could
reap the benefits of civilization. Assaults were launched on every institutional fiber of Native life.
American Indians/Alaska Natives had to reshape their ideas on land use, and the Dawes Act
yanked 90 million acres of communal land away from tribes. Its purpose, ostensibly, was to
engender the value of private ownership among Natives. This, of course, was also considered a
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vital step in assimilation into civilization. Boarding schools were developed to educate American
Indians/Alaska Natives in the trades and domestic skills of civilization. They served another
purpose as well: they dismantled the fabric of Native nurturing systems by yanking children out of
extended family systems and disrupting communal lifestyles. Schools dug even deeper into ego
identity by stripping away the rights of children to speak their native languages. Adults left at
home on the reservation faced additional assaults through a newly launched criminal justice
system, the Court of Indian Offenses. These courts set punishments for those American
Indians/Alaska Natives who retained and practiced their cultural ways, namely, those who
practiced traditional religion and spoke tribal languages. Punishments could be draconian for the
times; they included, among other things, the withdrawal of rations by so-called Indian agents—a
punishment, of course, that is tantamount to the death penalty on the plains.
           Cultural cleansing never fully took root because many traditional American Indian/Alaska
Native societies went underground; others were too remote to be impacted; still others doggedly
retained their ways in spite of American assaults. However, policies of cultural cleansing placed
tribes at risk of becoming an endangered species. In 1880, under the aegis of the theory of
racism, the Commissioner of Indian Affairs stated, "As a savage, we cannot tolerate him any
more than as a half-civilized parasite, wanderer or vagabond. The only alternative left is to fit him
by education for civilized life. The Indian, though a simple child of nature with mental facilities
dwarfed and shriveled, while groping his way for generations in the darkness of barbarism,
already sees the importance of education‖ (Prucha, 1978). By the late 1920s, when the Meriam
Report was published, Native populations had dropped precipitously. Those who had survived the
―American Holocaust‖ were at the bottom of all social indices for basic needs such as health,
food, and shelter. America had successfully cordoned off the reservations into domains of
poverty. The price of civilization had indeed been humanly expensive.
           The Meriam Report (Meriam et al., 1928) ushered in a modest mood swing and was
accompanied by serious grassroots organization in defense of American Indian/Alaska Native
rights. The Bursum Bill, a veiled attempt to strip land away from the Pueblos in New Mexico, was
soundly stopped in its tracks. Moreover, ideas were forming that would eventually shape
American Indian/Alaska Native New Deal legislation, which included provisions to reacquire land,
to practice religion, to retain languages, and to set standards for Native preference for
employment in the Bureau of Indian Affairs (BIA). Absolute forms of inhumanity were no longer
fashionable; at least not for another score of years. Policies introduced during the New Deal,
however, did not free tribes from the yoke of colonialism; they were still captive nations with every
decision by tribal governments requiring final approval by the U.S. government.
           American policy was also challenged on another ethical front during World War II. Hitler's
mantra was in a different language but had principles all too similar to America‘s in the 19th
century: a need for land and racial superiority. Hitler became the ultimate insult to humanity and
prompted passage of the United Nations Articles on Genocide. In a rather serendipitous manner,
World War II also benefited American Indians/Alaska Natives because American scholarly circles
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abandoned the theory of racism. Racial superiority would no longer be taught in the academy.
Tribes benefited but never really enough. Shortly after World War II, American Indians/Alaska
Natives faced renewed efforts to assimilate them into the American mainstream as Congress
yanked away political status from several tribes through termination; abdicated federal trust
responsibility through P.L. 280; enacted a relocation program to move Natives to urban areas;
and provided funds for an adoption program that would, once again, strip children away from their
tribal family systems.
                                        th
           These policies segued into 20 -century racism when Dillon S. Myer, appointed as
Commissioner of Indian Affairs in 1950, set up programs for the adoption of American
Indian/Alaska Native children by Whites so that Natives could ―have the advantages of a normal
home and family environment, which should be the birthright of every American youngster‖ (as
quoted in Smith & Warrior, 1996). In 1959, the Child Welfare League of America and the
government program charged to implement trust responsibility (the BIA) instituted an interstate
placement program designed to remove American Indian/Alaska Native children from their
families and tribes and place them with non-Native families (George, 1997). The BIA also funded
the Adoption Resource Exchange of North America that worked to strip tribal families of children.
States followed suit and developed similar efforts. For example, from 1944 to 1977, the Boys and
Girls Aid Society of Oregon placed 94% of American Indian/Alaska Native children entrusted to
them with non-Natives (Collmeyer, 1995). Similarly, the Indian Health Service (IHS), the federal
agency mandated to promote and maintain the health and well-being of Native people, instituted
sterilization projects in the 1960s and 1970s. Although clearly violating the United Nations Articles
on Genocide, almost half of all Native women of childbearing age were sterilized (Jaimes &
Halsey, 1992; Weaver, 2003).
           American Indians/Alaska Natives were also being greeted more and more by social
workers on a mass scale. Following P.L. 280 relocation programs and BIA-sanctioned
placements, more American Indians/Alaska Natives were being forced to urban areas. Those
who relocated, while developing a strategic network of urban Indian centers, still became victims
of ego psychology that was designed to follow premises of normalcy for America's middle class
nuclear family systems. American Indian/Alaska Native lifestyles and extended kin systems would
remain an anomaly; Native cultural behavior would have to wait until the late 1970s to early
1980s before strengths of extended kin systems would be acknowledged.
           In 1978, passage of ICWA initiated a framework for American Indian/Alaska Native
sovereignty, cultural competence, and family preservation. Briefly, ICWA affirms the right of
American Indian/Alaksa Native tribes to take over or at least be involved with any proceeding that
involves foster or adoptive placements of tribal members. The Indian Child Welfare Act is
premised on the sovereignty and integrity of American Indian/Alaska Native peoples (Weaver,
2003) and is considered a landmark policy designed to ensure that tribes have a voice in what
happens to their citizens. Unfortunately, lack of ICWA compliance has limited it effectiveness.

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           Following ICWA‘s lead, in 1993 the federal government established the Family
Preservation and Support Services Program, distributing almost $1 billion to states over a five-
year period. States were encouraged to use this, along with other funding, to initiate preventive
services into child welfare (McRoy, 2000). This preservation and preventive services period was
short lived when, in 1997, passage of the Adoption and Safe Families Act (ASFA) deemphazized
family preservation in favor of strict timelines and ―permanence quickly.‖ Red Horse et al. (2000)
state


           As ASFA transforms the child welfare policy agency yet again, its focus on
           streamlining the adoption process, along with the implementation of a quota
           system for federal funding, will have serious implications for American Indian
           tribes, families, and children. As a consequence, the interface between ASFA
           and American Indian communities remains of great concern, particularly since it
           mirrors earlier attempts at assimilation, which was in the main, a precipitating
           cause for passage of ICWA. In this respect, current policy appears like old wine
           in new bottles; it recycles old efforts disguised in the language of ‗the best
           interest of the child‘ and remains skewed in a non-Indian paradigm.


                   With few exceptions, federal policies such as those discussed have deliberately
undermined American Indian/Alaska Native communities, families, and cultures. Cultural
repression in both historical and contemporary times continues to cause trauma that leads to
identity crises, family dysfunction, and community disintegration. Indeed, many of the
contemporary social problems that family preservation and other services were designed to
address can be directly linked to the social disruption caused by federal policies of assimilation
and cultural destruction. As a result, ―the best interest of the child philosophy is antithetical to
American Indian family preservation. Tribal practices of extended family and the significance of
cultural attachment (not merely attachment to biological parents) are ignored, as is loss to the
collective tribal community that results from a child‘s removal from his or her culture‖ (Red Horse,
et al., 2000). Therefore, promoting and implementing truly culturally competent family
preservation programs, based on the sovereign right of Native tribes, is a significant challenge in
today‘s policy environment (Weaver, 2003).


Clinical Legacy: Fractured Families
           Efforts to strip away tribal values led to a variety of communities and individuals being
scattered across reservations, border towns, and urban areas. Some tribal families remain deeply
rooted in tribal customs; they adhere to traditional behaviors, practice traditional religion, and live
life according to the knowledge, attitudes, and beliefs that have shaped tribal ways for centuries.
These families form communities that still prefer traditional healing ceremonies. At the other end
of the spectrum, we have families acculturated into the mainstream society. They may participate
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in selected activities with other Natives, but their primary relationships are with non-Natives. We
also have families that blend belief systems, live bicultural lifestyles, and aspire to mix the most
functional traditional values with non-Native beliefs. These families organize into strong
communities but often practice two religions, cull out a selective set of cultural values to guide
their lives, and merge comfortably into two worlds.
           While the sense of extended family has remained extremely strong over the years, the
actual social structure has been ripped asunder in many cases. This should, of course, be
expected given the history of Indian-White relations. Essentially, family upheavals correlate
directly with political and professional interventions. Data gathered from six states during the
1970s found that American Indian/Alaska Native children were removed from families at alarming
rates and either placed in foster care or adopted (Byler, 1977). In both cases, Native children
were sent predominantly to non-Native families. A seminal work capturing this trend, aptly titled
The Destruction of American Indian Families, pointed to several systemic reasons: 1) social
workers often removed children without appropriate cause; 2) Native children were often removed
after only one casework visit; 3) court systems did not fully advise American Indian/Alaska Native
parents of legal rights; 4) legal representation was not effective; and 5) child welfare systems did
not launch effective efforts to find Native foster homes (Unger, 1977).
           Non-attendance at school was another factor leading to removal of children from Native
families. Children who did not attend school were referred to court and sent either to a juvenile
institution or to foster care. In Minneapolis, the American Indian Movement launched a Red
Ribbon Grand Jury to conduct an inquiry into the public school system and the juvenile court. This
action led to the creation of a Legal Rights Center for Indians and the Heart of the Earth Survival
School in Minneapolis. Two other schools followed: the Little Red School House in St. Paul and
the Indian Day School in Milwaukee. These schools successfully sheltered American
Indian/Alaska Native families from charges of educational neglect, which child welfare agencies
pursued with a vengeance.
           The Legal Rights Center stemmed many efforts to remove American Indian/Alaska
Native children in Minneapolis and in reservation areas in northern Minnesota and northwestern
Wisconsin; on a national level, the Association of American Indian Affairs provided excellent legal
representation for Native parents. However, their efforts could not change the frame of reference
from which legal arguments would arise. That paradigm shift did not occur until passage of ICWA
in 1978.
           As noted, ICWA is a bold effort by Congress to reverse 200 years of political, legal,
educational, and religious efforts to dismantle American Indian/Alaska Native tribes and families;
it did this by simply reaffirming Native attributes of sovereignty. Congress notes that its authority
derives from a special relationship in which the federal government has trust responsibility to
protect and preserve Native tribes. Indeed, the Congressional intent revises historic practice and
introduces a national policy to ―promote the stability and security of Indian tribes and families‖ (25
U.S.C. Sec.1901, 1902). In this regard, its title is something of a misnomer, particularly since
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ICWA concerns transcend the parameters of child welfare as it is commonly understood by
mainstream professionals. It is, essentially, a social conservation policy that reaffirms and
reconfirms the structural and cultural integrity of American Indian/Alaska Native tribes and
extended family systems.
           The Indian Child Welfare Act is an essential road map for family preservation. A few
points highlight this. First, ICWA defines extended family members following ―the law and custom
of the Indian child‘s tribe or, in the absence of such law or custom . . . the American Indian/Alaska
Native child's grandparent, aunt, uncle, brother, sister, brother-in-law, sister-in-law, niece,
nephew, first or second cousin, or stepparent‖ (25 U.S.C. Sec.1901, 1902). Second, with respect
to child placement, prevailing social and cultural standards of the child's American Indian/Alaska
Native community will serve as the guideline. Third, ―active effort‖ is required of remedial services
designed to prevent the breakup of the Native family. Fourth, removals for foster placement
require a preponderance of evidence, and termination of parental rights requires evidence
beyond a reasonable doubt.


Clinical Applications: Cultural Competence
           Several clinical applications may advance cultural competence. These range from those
common in mainstream social work to those used by traditional American Indian/Alaska Native
healers. Those applications selected for this work carry two essential messages. First, cultural
competence requires that mainstream social work enter into a partnership with Native
communities. Second, this partnership needs to be among equals; cultural competence goes
beyond racial tolerance and operates in a clinical environment of unconditional positive regard
(i.e., Native healers and elders who are cultural specialists must be accepted as clinical peers).
           Working within the framework of the attributes of sovereignty also assumes that
American Indians/Alaska Natives are not in need of rescuers from non-Native sources. Rather,
healing comes from within tribal cultures. We may augment Native healing practices with a few
mainstream social work methods; however, cultural competence will generally work toward
American Indian/Alaska Native cultural norms and tribal social standards derived from historic
knowledge, attitudes, and beliefs.
           Thus, cultural competence works toward the reaffirmation of the cultural and the
structural integrity of extended family as articulated in ICWA. This is an inclusive structure with
members along a vertical line such as grandparents and aunts, as well as members along a
horizontal line, such as first and second cousins. This is generally consistent across tribal groups
in the United States, and its parameters are delineated quite clearly in ICWA.
           Finally, healing extended families rather than placing Native children out of their families
is the fundamental intent of ICWA. Indeed, most American Indians/Alaska Natives note that
extended family and tribal integrity are its overriding raison d’etre. This reasoning certainly falls in
step with its preamble set by Congress. The applications discussed herein are designed
principally for group work so that family and kin will become engaged in the healing process.
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   Together, these methods may represent minimum standards of ―active effort,‖ which is articulated
   in ICWA. In fulfilling this minimum standard, we believe that the profession can foster
   approachability and revitalize cultural cohesiveness among members of extended kin systems
   both on and off reservations.
              Figure 4, ―Active Effort Protocol Continuum,‖ presents six clinical tools that have been
   used successfully with American Indian/Alaska Native family and kin systems. These include:
   genogram, wraparound, talking circles, kinship care, healing ceremonies, and traditional
   adoptions. As indicated, the domain shifts from mainstream to traditional as movement occurs
   from left to right. As movement takes place, non-Natives will have to transfer responsibility to
   Native healers. This transfer of responsibility may come up against resistance from individuals
   who are not proponents of cultural competence. However, non-Natives do not have sole
   ownership of cultural competence; Native healing traditions pre-date the first contact with French,
   British, and Spanish explorers and have worked quite well in family treatment.


   Figure 4: Active Effort Protocol Continuum




Genogram           Wraparound           Talking        Kinship        Healing           Traditional
                                        Circle         Care           Ceremony          Adoption




MAINSTREAM                                                                            TRADITIONAL

              Genograms are mainstream tools that plot family maps. This is an important activity and
   is completed by families themselves. Hence, it engages clients in their own healing process from
   the onset. Genograms serve three major functions. First, they facilitate the identification of
   members within extended kin systems. Indeed, genograms often prove vital for mapping a myriad
   of multi-generational kinship streams commonly found among American Indians/Alaska Natives.
   Second, they delineate patterns of behavior. This is quite important because clients are actively
   engaged and can begin to articulate behavioral stressors that have tugged at their family across
   two or three generations. Most important from the standpoint of family preservation is that
   genograms assist in identifying strengths, particularly leadership resources such as aunts, uncles,
   cousins, or elders who may provide a natural helping network within family systems.
              Finally, genograms plot information around the maintenance of cultural norms. This
   information is an essential step in ―active effort‖ because ICWA mandates the use of tribal social
   and cultural standards in casework. Of course, as a consequence of colonial policies, some
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American Indian/Alaska Native families are quite fractured and stressed. They need clinical
beacons, perhaps traditional and mainstream, to assist in healing efforts. Genograms simply
jump-start the casework process by articulating limitations as well as strengths. Those with
limitations resulting from lack of contact with their tribal family may benefit from ―habilitation‖
services, i.e., an introduction to cultural cohesion; others may be in need of cultural
―rehabilitation‖ for reentry into cultural ways. Still others may prefer bicultural ways that blend
Native traditions with mainstream ways.
           Wraparound is another mainstream tool that works remarkably well in cultural practice,
particularly if its process respects cultural and social standards of tribes. In most respects,
wraparound combines procedures for case management and treatment because a clinical team
monitors case progress, and one or more members of the team maintain ongoing clinical contact
with clients. Its success with tribal groups seems contingent on involvement of elders, family
members, and other cultural leaders who serve on an equal basis with social work professionals.
Actually, the most successful wraparound models are those in which a majority of participants
come from clients‘ extended families and their tribal communities. A crucial element in
wraparound is that clients choose who will serve as members of the team. This serves two
essential functions: it empowers clients and gives them important responsibilities in the clinical
process. Field data on such uses of wraparound indicates that clients generally select respected
elders who understand traditional methods of healing as well as natural leaders from their
extended kin system.
           Talking circles have long been identified as an important method of cultural transmission
used by tribal groups. Storytellers pass on oral histories via talking circles and are held in high
esteem for their abilities. American Indian/Alaska Native programs have more recently replicated
talking circles as a methodology in substance abuse prevention and treatment. The circles have
also taken root among non-Natives. In clinical functions, talking circles facilitate a cultural model
or a healing circle that follows a group process. This is, without doubt, a powerful tool among
Natives who have a strong understanding of traditional healing methods that involve kin, clan,
society members, and namesakes. Talking circles also facilitate intervention through cultural
education and avoid common pitfalls like scapegoating. Among non-Natives, this strategy is used
effectively with self-help groups, such as Parents Anonymous, albeit kin are seldom involved.
While stressors may be tugging at clients, talking circles bring focus to issues more substantive
than parenting lapses; they begin to examine what is normal in a cultural sense, to articulate how
extended families behave, and to provide opportunities for members of the circle to act as a
natural helping network.
           Kinship care is another long-held practice among American Indians/Alaska Natives.
Attneave (1982) referred to its use as natural helping networks. Indeed, kinship care is simply
normal behavior in Native extended family systems. American Indian/Alaska Native elders have
noted this for a number of years and have often suggested that all family and children‘s services
should follow an inter-generational model. Elders have a long record of service as caretakers for
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grandchildren; hence, they see such kinship care as useful in foster care, emergency care, and
counseling. Elders also emphasize that kinship care would strengthen cultural cohesiveness in
communities and family units alike. On that note, it is important to indicate that, following the
advice of Native elders, social work professionals advancing kinship care methods would
certainly be following mandates of tribal law and custom articulated in ICWA.
           An array of traditional ceremonies and rituals are useful in family preservation treatment.
Sweats are held on university campuses, in large metropolitan areas and on reservations.
Naming feasts are conducted on an equally widespread basis. Major pow-wows are dedicated to
―Wiping Away the Tears‖ ceremonies. Except for the latter activity, non-Natives do not generally
participate in these activities. These are important resurgences that broaden vital strengths of
culture. These have always been extant, of course, but conducted sub rosa. In recent years,
though, American Indian/Alaska Native healers have comfortably moved around, and it is not
unusual for a healer from Wisconsin to conduct a sweat in Los Angeles. Moreover, following
Native custom, these are all extended kin activities; ceremonies and rituals are centerpieces to
family preservation.
           Traditional adoption has always been practiced and is simply another key method for
involvement of kin and for reconnection of extended family systems. Traditional adoption differs in
one important respect from mainstream practice: it does not terminate parental rights. Traditional
adoption, therefore, does not destroy natural bonds between biological parents and children.
Rather, it confirms and acknowledges, in a quite natural way, the overall function of an extended
kin system, particularly the role of grandparents, aunts, and uncles as parent figures. It is
common in traditional American Indian/Alaska Native societies, for example, for elders to be
considered the parents of all children in their community. This belief even transcends community
boundaries among tribes with clan systems because individuals in the same clan are bound in a
sacred relationship. Traditional adoption, therefore, is simply another cultural safety net for
extended kin systems.
           In conclusion, an understanding and respect for sovereignty grounded in Native culture
allows for a paradigm shift in policy and practice. The theory of sovereignty shifts attention away
from family deficit models and draws attention to models of cultural strength. As a result, the
theory of sovereignty fosters respect for cultural institutions and promotes capacity-building in
policy development, planning, service delivery, and program evaluation. Once fully understood, it
will promote a new mantra: cultural competence seeks out what works by encouraging cultural
empowerment for cultural solutions.
           In addition to the theory of sovereignty, placing mainstream practices (such as those
listed in Figure 4) within a tribal cultural context, it begins to establish credibility for these
previously devalued approaches and encourages tribes and extended family members to become
intricately involved with the care of their children (Cross, Earle, Solie, & Manness, 2000). As
service delivery systems turn over the responsibility for implementing the intervention

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components and strategies to families, models emphasizing traditional roles and connections of
biological/extended family are being revitalized.


Additional Barriers
           While a number of barriers and challenges to sovereignty, cultural competence, and
family preservation have already been posited, a few more deserve attention at this stage. In
addition to challenges faced by American Indian/Alaska Native families as a result of federal
policies designed to annihilate and assimilate, implementation of existing policies and services
that could potentially strengthen Native families are the exception rather than the rule. It is a sad
fact that many social services, including some family preservation models and practices, have
been developed and applied with minimal regard for tailoring to specific Native populations‘
strengths and/or needs. It is not that models cannot be developed or shaped to meet the needs of
Native people. In fact, there are many positive aspects of family preservation and other social
services that easily lend themselves to practice with American Indian/Alaska Native populations.
In the real world, however, culturally specific tailoring to meet the needs of American
Indian/Alaska Native clients rarely happens outside tribally based programs (Weaver, 2003).
           James Bell Associates (JBA) (2004) suggests that a lack of tribal infrastructure and
dependence on external social service delivery systems have also been problematic. Tribes are
often dependent on state and county agencies for services in order to fund technical assistance,
placements, and staff positions: ―It has been noted that this heightens tribes‘ emphasis on
monitoring out-of-home placements for children in state custody and identifying tribal placement
resources for them, to the detriment of focusing on preventative and supportive service
development‖ (James Bell & Associates [JBA], 2004). This has resulted in tribes‘ being forced to
adopt less successful mainstream practices, at the expense of more appropriate tribally-based
services, in order to ―qualify‖ for payments.
           Red Horse, et al. (2000) note that in spite of rhetoric to the contrary, mainstream services
and service providers, ignorant of Native cultural practices, continue to function from a deficit
perspective. This has resulted in practices that are neither culturally appropriate nor effective for
intervention and treatment modality. Contemporary family preservation must incorporate healing
of the Native ―wounded soul‖ that lingers from historical oppression. This begins with institutional
and provider recognition of the historical trauma suffered by American Indian/Alaska Native
people and the continued impact of unresolved grief. As a result, the intergenerational memory of
ongoing interference from the federal government can leave Native people hesitant to trust
professionals and to be open to accepting help. Therefore, professionals must acknowledge the
anger and grief related to past exploitation and be conscious of issues of power in the helping
relationship.




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Successful Models
           Models that build on a strengths perspective and are tribally centered have been shown
to be effective with American Indians/Alaska Natives. The family preservation program at Ft.
Berthold in North Dakota provides a model of tribally based services. A study of this program (see
Red Horse et al., 2001) found that tribal family preservation requires community education and
advocacy, tribal members as staff, reliance on cultural systems, and social work skills that
incorporate culture and work from a strengths base. Here, standards and practices are based on
tribally identified strengths.
           A lot can be learned from tribal social service programs already in existence. These can
serve as models for development of other tribal programs as well as provide guidance for non-
tribal programs that serve American Indian/Alaska Native families. For example, tribal social
service workers in the program at Ft. Berthold did not see themselves as separate from the
community or the people they served. Culture was integral and was not an add-on to
programming. Formal social work training was considered helpful but cultural knowledge was
considered vital (Red Horse, et al., 2000). This program was successful partly because of
increased funding by the government and lighter caseloads for workers but mostly due to the
cultural continuity between workers and clients.
           Respect for sovereignty grounded in Native culture provides the keystone for culturally
appropriate service provision. Policies such as ICWA, which affirm cultural integrity and the right
of American Indian/Alaska Native tribes to have a voice in their future begin to realign the current
power imbalance. For example, the ―full faith and credit‖ provision of ICWA acknowledges that
tribal social services are competent and capable of serving the needs of their members (Weaver,
2003).
           Cross, et al. (2000) note that models that utilize traditional practices and involve
community members are important considerations in providing culturally competent services. It is
suggested that rather than seeing traditional healing as an adjunct to standard service provisions,
services for American Indians/Alaska Natives should be founded on cultural values, with
mainstream services as the adjunct: ―Rather than improving the cultural sensitivity of mainstream
therapists, culture-specific approaches for service delivery should be created.‖ Within this model,
harmony is integrated into an existing, organically functioning system. This leads to cultural
congruence among all elements, such as language spoken, cultural beliefs, service needs, and
all parts of the intervention encounter. Cross et al. (2000) go on to say that elements such as the
use of traditional healers, the recognition of culture-specific symptoms, and the involvement of
extended family members are examples of dimensions that can effectively be addressed. Here,
the true client is not only the individual client but also the tribal community. Additionally, a strong,
positive cultural identity is necessary for healing, and spiritual values and practices must be
documented and promoted.



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                                             REFERENCES
Attneave, C. (1982). American Indians and Alaska Native families: Emigrant in their own
           homeland. In M. McGoldrick, J. Pearce, & J. Giordano (Eds.), Ethnicity and family
           therapy. New York, NY: Guilford Press.


Byler, W. (1977). The destruction of American Indian families. In S. Unger (Ed.), The destruction
           of American Indian families. New York, NY: Association on American Indian Affairs.


Collmeyer, P. (1995). From ―Operation Brown Baby‖ to ―Opportunity‖: The placement of children
           of color at the Boys and Girls Aid Society of Oregon. Child Welfare, 74(1), 242-263.


Cross, T., Earle, K., Solie, H. E., & Manness, K. (2000). Cultural strengths and challenges in
           implementing a system of care model in American Indian Communities. Retrieved August
           10, 2004 from http://cecp.air.org/promisingpractices/2000monographs/vol1.pdf.


George, L. (1997). Why the need for the Indian Child Welfare Act? Journal of Multicultural Social
           Work, 5(3/4), 165-175.


Indian Child Welfare Act of 1978, 25 U.S.C. §1901 et seq. (2000).


Jaimes, M. A., & Halsey, T. (1992). American Indian women: At the center of indigenous
           resistance in North America. In M. A. Jaimes (Ed.), The state of Native America:
           Genocide, colonization, and resistance. Boston, MA: South End Press.


James Bell Associates. (2004). Implementation of promoting safe and stable families by
           American Indian tribes: Final report. Arlington, VA: Author.


McRoy, R. (2000). Family preservation‘s essential services in the new millenium. In H. Altstein &
           R. McRoy (Eds.), Does family preservation serve a child’s best interest. Washington, DC:
           Georgetown University Press.


Meriam, L., Brown, R. A., Cloud, H. R., Dale, E. E., Duke, E., Edwards, H. R., McKenzie, F. A.,
           Mark, M. L., Ryan W. C., & Spillman, W. J. (1928). The problem of Indian administration.
           Baltimore, MD: Johns Hopkins Press.


Pratt, R. H. (1973). The advantages of mingling Indians with Whites. In F. Prucha (Ed.),
           Americanizing the American Indians: Writings by the ―friends of the Indian‖ 1880–1900.
           Lincoln, NE: University of Nebraska Press.

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Prucha, F. (Ed.). (1978). Americanizing the American Indians: Writings by the ―friends of the
           Indian‖ 1880–1900. Lincoln, NE: University of Nebraska Press.


Red Horse, J., Martinez, C., & Day, P. (2001). Family preservation: A case study of Indian tribal
           practice. Seattle, WA: Casey Family Programs.


Red Horse, J., Martinez, C., Day, P., Day, D., Poupart, J., & Scharnberg, D. (2000). Family
           preservation: Concepts in American Indian communities. Seattle, WA: Casey Family
           Programs.


Smith, P. C. & Warrior, R. A. (1996). Like a hurricane: The Indian movement from Alcatraz to
           Wounded Knee. New York, NY: New Press.


Unger, S. (Ed.). (1977). The destruction of American Indian families. New York, NY: Association
           on American Indian Affairs.


Weaver, H. (2003). Family preservation with American Indian children and families. In E.
           Gonzalez-Santin and T. Perry (Eds.), Understanding the cultural context: Working with
           American Indian children and families. Tempe, AZ: Arizona State University, School of
           Social Work, Office of American Indian Projects.




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   Foster Care and Permanency Issues for American Indian/Alaska Native Families and
                                              Children
                                         Gordon Limb, PhD


                                              Abstract
           This chapter highlights the connection between permanency and foster care from an
American Indian/Alaska Native perspective. The concept of permanency as used throughout this
chapter involves a Native child‘s sense of trust and stability over time and refers to relationships
with the child‘s physical and spiritual environment that reinforce this sense of belonging and
permanence. In the past, federal policies have been detrimental to American Indian/Alaska Native
tribes by removing large numbers of children from their families and destroying their sense of
belonging and permanence. Passage of the Indian Child Welfare Act (ICWA) in 1978 was a major
step in recognizing the vital role of permanence in Native families. The importance of
permanence over time continues to be an integral part of Native culture and well-being. Although
permanency planning and ―achieving permanency‖ have been options of the child welfare field
since the early 1980s, tribal definitions of ―sustaining permanency‖ continue to be misunderstood
by the dominant culture, leading to a lack of enforcement and resources in this area.




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                                             Introduction
           This chapter will define and examine permanency and its implications in the child welfare
system, specifically foster care, and the delivery of culturally appropriate services to American
Indian/Alaska Native families and children. The first section will give a basic overview of
traditional American Indian/Alaska Native life, focusing on customs and traditions regarding child
rearing. The second section focuses on the child‘s definition of permanence, the importance of
interdependence, and federal policies that have had a detrimental impact on American
Indians/Alaska Natives. The third section looks at the widespread removal of Native children from
their families and communities and the resulting need for the Indian Child Welfare Act. Here,
ICWA is discussed as it relates to permanency and the protection of children, the preservation of
families, and the survival of a people. The fourth section looks at what ICWA requires, with
emphasis being placed on legal requirements that impacts permanency. The fifth section looks at
current federal family preservation policies and their impact on permanency. The sixth section
examines barriers to permanency, while the seventh section examines models that demonstrate
success. The final section highlights key conclusions drawn throughout the chapter.


Traditional American Indian/Alaska Native Family Life
           Permanency as used throughout this chapter refers to relationships with all things in an
American Indian/Alaska Native child‘s physical and spiritual environment that reinforce his or her
sense of identity and belonging and offers that child a sense of trust and stability over time.
Permanency can only exist if the child perceives security, a sense of belonging, and continuity of
relationships over time. Therefore, in order to understand permanency from an American
Indian/Alaska Native perspective, the reader must first understand this concept within traditional
family life.
           The influence of the United States federal government and its impact on the lives of
American Indian/Alaska Native families and children cannot be ignored or discounted.
Nevertheless, it is important to approach this impact with some knowledge and recognition of the
fortifying agents that connect the expressions of life as they are understood and accepted by
American Indians/Alaska Natives living today. One of the most distinctive aspects of tribal life has
historically been the central position of the child. Children in a very real sense represented the
renewal and preservation of life (Blanchard, 1983). A child was born into a particular family and
from birth that child‘s place in the world was defined by relationships with his or her mother‘s and
father‘s families. In a fundamental sense, a child‘s very definition as a human being was formed
in a context that focused on these familial relationships. Cross and McNevins (2003) state that
―the non-Indian society places a very high value on the concept of the individual, to the point of
almost considering children as beings who can be placed in virtually any suitable situation and
grow up successful and happy as long as they bond with another individual. Indian societies also
value individuals, but they tend to define an individual more in the context of relationship (clan
and extended family).‖
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           For American Indian/Alaska Natives, if the child maintains the central position, then the
family can be seen as the recognized cornerstone. It serves as a ―repository for value orientations
that guide human behavior, as a transactional milieu for life span socialization, and as a basic
catalyst for cultural revitalization‖ (Red Horse, 1980). The importance of family as a tribal
cornerstone is readily captured in conceptual themes associated with family and individual
development. Red Horse (1997) states that


           Western science follows linear models of development whereby age and
           independence are positively correlated. Essentially, this assumes that as
           individuals become older they are expected to become independent of their
           family of origin. In marriage, for example, individuals unite into a family that
           becomes subordinate to their blood kin system. In traditional Indian communities,
           however, development is a phenomenon whereby age and independence are
           negatively correlated. Essentially, this assumes that as individuals become older
           they are expected to assume increased kinship responsibilities. In marriage, for
           example, individuals unite but uniquely marry into a larger kin system. As such,
           individuals do not necessarily grow independent of their family of origin.


           This example demonstrates that American Indians/Alaska Natives have a strong family
orientation that goes far beyond the immediate nuclear family. In some tribes, family has been
defined as everyone in the tribe. Traditionally, this broad definition of family has focused on the
integral role of extended family members. The extended family may have as many as 200 to 300
members, including both blood relatives and clan members, often extending to the second
cousin. While the extended family remains the primary support network in tribes, extended family
systems are often misunderstood by the dominant society. This originates from experiences and
trainings that highlight nuclear family models with only occasional mention of extended family
models. For example, American Indian/Alaska Native communities are often made up of small
populations ranging from 200 to 400 individuals who organize into several households. Red
Horse (1997) states


           This physical separation is not like the average American neighborhood model,
           with nuclear families in each household. American Indian communities are
           extended kin systems, and residents in each household are related by blood,
           marriage, or adoption. This extended kin system is commonly referred to as the
           extended family and includes vertical and horizontal dimensions. Hence, some
           households in the family may have three generations living in them, but
           neighboring households of cousins, aunts, and uncles are equally important
           family social units with whom intense daily contact occurs.

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Red Horse calls this feature ―lateral extension‖ and notes that these multiple households
accompany and strengthen bonding by including significant non-kin who are treated as family
members.
           Historically, tribal communities had well-developed customs and traditions regarding child
rearing that produced a natural system of child protection. In this context both the birth family and
the extended family were part of an overall support system. The key was to ensure that neither
system had dominance over the other (Blanchard & Barsh, 1980). Further, this system was easily
enforced within the extended family where parents and children were under the watchful eyes of
relatives and elders (Cross, Earle, & Simmons, 2000). Responsibilities for rearing children were
                                                                                     75
often divided among extended family and tribal members. Figure 5                          demonstrates this concept.


Figure 5: Reference Points for Belonging: Extended Family Model



                                                                                                Child
                                                                                     h           Extended Family
                                                                                     a           Clan Non-Blood
                                                                                     i
                                                                                     rx          Relatives
                                                                                     ln
                                                                                     r tr
                                                                                     e           Religious Leaders
                                                                                     a/
                                                                                     d
                                                                                     ie
                                                                                     n ir        Tribal Community
                                                                                     nN
                                                                                     bn
                                                                                     tt  i
                                                                                     /o
                                                                                     ad
                                                                                     su  b
                                                                                        n
                                                                                     lae a
                                                                                     N-
                                                                                       d l
                                                                                     ol B
           For example, Y. Red Horse (1982) presented a case of a C/                 15-year-old American Indian
                                                                                     nl
                                                                                       F C
                                                                                     onot to live with her parents,
youth, Linda, who was doing very well in high school. Linda chose- R
                                                                                        o
                                                                                     m a o
                                                                                     be o
                                                                                       m
                                                                                     m  lm
75
   Note: Extended family includes grandparents, aunts/uncles, cousins, as well aslbrothers/sisters.
                                                                                        d
                                                                                       im
                                                                                     ui
                                                                                     o
In order to better understand this figure, the reader is encouraged to view this model the same way one would view an
                                                                                     nlg u
onion—with many different and vital layers of protection. For example, if the Native parent were to become unable to care
                                                                                     oR
                                                                                       y closer to the center) to an outer
                                                                                     i in
for the child, then he or she would move from having a primary role of support (originally
                                                                                     de
                                                                                         i
layer but still maintain a secondary role, and the other layers (or protection groups) would then move into the primary role
                                                                                     to
                                                                                        l
(toward the center) and provide support, thus allowing the child to establish and maintain his or her sense of belonging
                                                                                     yu  t
                                                                                     ra
and permanence. Thus, even if one layer cannot provide the necessary care at a given time, that layer is not taken away
                                                                                         y
but simply moves toward the outer layers and provides secondary support. It is also se timportant to note that these groups
are not necessarily mutually exclusive and are designed to overlap within the various categories to protect and instill
                                                                                   li
permanence in the Native child (for example, grandparents can be members of child‘s extended family and clan, may be
                                                                                 L av
considered elders, and are often tribal members). Although, for purposes of this diagram, each group contains distinct
                                                                                   te
                                                                                    e
individuals, each group also maintains a responsibility, a bond with, and a commitment to the overall well-being of the
child.                                                                             ia
                                                                                    s
                                                                                   vd
R13227-0                                                    229                     ee
                                                                                    sr
                                                                                     s

                                                                                                          P
                                                                                                arents
who had problems with alcohol, but lived instead in five different extended family households over
a three year period. A county social worker, who had been involved with Linda as she moved in
and out of foster care, felt that living with numerous extended family members was an indication
of irresponsibility on the part of Linda and neglect on the part of the parents. At the age of 17,
Linda requested support from the county to find a place of her own. This request was resisted by
the social worker, who insisted that Linda‘s previous record of living in numerous foster
placements displayed a pattern of instability. American Indian professionals finally intervened on
Linda‘s behalf and pointed out that Linda was doing very well in school and that many members
of her extended family lived within an eight-block radius of her requested apartment. They also
pointed out that living in the households of extended family members was not uncommon and
could actually be seen as a cultural strength.
           As can be seen in the above figure and Linda‘s example, the extended family concept is
a concept of interdependence, which implies that family members have reciprocal responsibilities
as well as a support network (National Indian Child Welfare Association [NICWA], 1996). It is
important to think of extended family involvement as a group function, a shared responsibility.
Children are not viewed as their parents' property, but are considered gifts from the Creator,
endowed with special powers and gifts. Thus, respect is extended to children as necessary and
equal partners in holistic or communal balance (Cross, et al., 2000). If viewed as part of a family
system, when a parent may be unprepared to care for a child, the network can be organized as a
system of care around a child where the parent is assisted and supported to function responsibly.


Permanency and Belonging: A Tribal View
           Beyond this level of tribal interdependence is the sense of belonging that comes from
Native spiritual and cultural belief systems, most of which recognize the interdependence of all
things, with each assisting in a holistic existence and relationship that impacts all other things. It
is this sense of relationship with all things in one‘s physical and spiritual environment that
reinforces the sense of identity and belonging and goes beyond the physical or tangible world
(NICWA, 1996). When these elements are incorporated into practice, they offer the child a sense
of trust and stability over a period of time—known as permanency.
           This perception of permanence can be said to exist only if the child perceives security
and a sense of belonging to a family, extended family, clan, and tribe over time—which is a
critical aspect of permanency (California Social Work Education Center, 2000). Within this
concept, kinship circles, clans, and the community shape and define a child‘s experience of the
world, his or her tribal identification, and his or her sense of belonging. Permanency therefore has
as much to do with maintaining a child‘s connections with his or her tribe and Native heritage as
with his or her nuclear family, and should not be thought of as a separate component, but an
overarching aspect of holistic living. Therefore, the primary goal of the permanency concept is to
provide a child with continuity of relationships and the culturally appropriate means by which a
child can know his or her family (NICWA, 1996).
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            For American Indians/Alaska Natives, an extensive support network is both retained and
developed for transmission of cultural attributes. In most tribes, grandparents and elders retain
official and symbolic leadership in family networks. Grandparents introduce a wisdom valued and
sought by all group members. Official leadership is characterized by a close proximity of
grandparents to family. Cultural wisdom as related through a grandparent‘s experience offers a
continuity of world view and was witnessed through the behavior of children who actively seek
daily contact with grandparents and by grandparents who monitor parental behavior. Here,
grandparents have an official voice in child-rearing methods. Symbolic leadership, which often
                                 76
occurs for urban Natives,             is characterized by an incorporation of unrelated elders into the family.
Red Horse, Lewis, Feit, and Decker (1981) note that this prevails during an absence of a natural
grandparent, but is not necessarily limited to such an absence. It is demonstrated through the
behavior of parents and children who select and virtually adopt a grandparent. In this milieu,
younger people are taught to seek social acceptance from elders. Symbolic grandparents often
will not invoke strong child-rearing sanctions because their acceptance and advice are sought
after directly from the family.
            Within the family, most Native children are taught to care for and be responsible for
younger brothers and sisters. This preparation sets the stage for a natural helping network. Y.
Red Horse (1982) notes


            Within extended family systems, however, relationships are enacted and
            maintained through a context of mutual interdependence, actually increasing

76
     While a detailed discussion of urban American Indian/Alaska Native issues is beyond the scope of this chapter, it is
important to note that the steadily increasing rates of urbanization and intermarriage of Native people since the federal
relocation program of the 1950s are significant factors in the discussion of developing and maintaining permanency.
Today, the urban American Indian/Alaska Native population accounts for the majority of the Native population (over two-
thirds) in the United States. Removing large numbers of people from sites where federally funded Native social services
were available and placing them where neither the federal nor state government had any legal obligation to provide
comparable services, compounds the challenges faced by American Indian/Alaska Native people in urban settings
(Mindell, Vidal de Haymes, & Francisco, 2003).
            Additionally, a number of characteristics are unique to the urban American Indian/Alaska Native community.
The make up of the urban Native community is culturally diverse where numerous tribes are represented in a single city.
American Indians/Alaska Natives also tend to live among other groups rather than cluster together in homogeneous
neighborhoods. As a result of this geographic dispersion, urban American Indians are often overlooked. Another
challenge lies in the lack of resources available to urban Natives. The geographic distance of the tribes and the lack of
government resources and access to funding have also limited the development of community resources, such as Native
healers, licensed Native American therapists and foster families, and other community-based Native organizations (Frith-
Smith, & Singleton, 2000). Nevertheless, within urban American Indian/Alaska Native communities the cultural and
spiritual affinity and sense of responsibility to each other is usually common regardless of tribal affiliation. This practice is
not formal but is easily recognized. Further, many of the urban Native families who want to provide foster/kinship care for
children feel skeptical of non-Native certifiers doing foster care/adoption home studies. As a result, there continues to be a
need for states to contract with Native organizations or Native staff to recruit Native foster homes.


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           one‘s dependence upon family. Indian adolescents develop stronger
           interpersonal bonds during this period of growth and development. Rather than
           becoming more independent of the family, their obligations and responsibilities to
           and dependence on family increase…. Indian adolescents often struggle with
           social service and mental health professionals who encourage separation,
           independence from family, and an understanding of self separate from significant
           others. Indian adolescents perceive this advice as a threat to their value of family
           which has become a primary unit for socialization. The family as a support
           network is critical to the development of social responsibility among Indian
           adolescents.


           NICWA (1996) suggests that the group, or interdependent, nature of American
Indian/Alaska Native society offers the child strength, a sense of permanence, and a sense of
commonality with other members of the group. This sense of commonality promotes the child‘s
commitment to the group, as well as that of the group to the child, and is reinforced by tribal
custom and the oral tradition. It is unfortunate that over a period of time this cultural system has
eroded somewhat and there are Native families who have lost the ties that bind them to extended
family, tribe, and culture. While it can be said that not all Native people are served by the cultural
system in the way they were historically, it is also true that these reference points for belonging
and permanence still exist and can be sought out and enhanced as resources for even those
estranged from their culture.
           Thus permanency, from an American Indian/Alaska Native perspective, does not simply
involve a specific ―event‖ as many in the child welfare field have suggested (e.g., termination of
parental rights), but rather a process that involves a range of well-being issues. These culturally
appropriate permanency outcomes for Native children include: 1) remaining safely with family and
kin; 2) when placement is deemed necessary, timely reunification with family and kin (with
services provided to make this possible; 3) when reunification with family cannot occur, living
safely with guardian, kin or other known and caring adult (as identified by the child); 4) when
these options are unavailable, adoption/customary adoption by kin, foster parent or another family
(that maintains a child sense of belonging and permanence); and 5) when all other options have
been exhausted, other planned alternatives approved by the tribe and child (Cross & McNevins,
2003). Therefore, the overall goal of permanency from a tribal perspective is to promote the
development of ―family-based‖ approaches, with input from the child, family, and kin, designed to
promote the continuity of families and children within their own tribal communities.


American Indians/Alaska Natives and the Federal Government: Law and Policies
           It has been documented that the federal government pursued policies and practices for
over 200 years that were disruptive to American Indian/Alaska Native family structure and
lifestyles. Prior discussion in this chapter has demonstrated that family and extended family are
R13227-0                                           232
vital components in a Native child‘s growth and development. Therefore policies designed to
separate Native children from their families and extended families would prove especially
detrimental. While there are many policies one could highlight, among the most devastating was
the belief on the part of the federal government and controlling agencies in a ―child rescue‖
course of action whereby the removal of American Indian/Alaska Native children was promoted
and supported (Mannes, 1993). By removing these children from their families and facilitating
their adoption by non-Indians, the federal government and controlling agencies separated tens of
thousands of children from their parents, extended families, and tribal communities and aided in
the assimilation of thousands of Native persons into the dominant culture; thereby severing the
children‘s sense of belonging and permanence (Byler, 1977).
           Utilizing a cultural deficiency model, the federal government saw American
Indians/Alaska Natives as ―educationally disadvantaged‖ and ―culturally deprived‖ (Graham,
2002). The writings of Senator Dawes in 1899 demonstrate a view of American Indians/Alaska
Natives as culturally deprived people leading a savage lifestyle. (See Jones, Gillette, Painte, &
Paulson, 2000.) Politicians in the 1800s made public policy the practice of taking Native children
away from their parents and placing them in boarding schools. The boarding school era, which
began in 1879, involved separating children from their parents from 5 years to 20 years of age
and sending the youngsters to schools operated by the Bureau of Indian Affairs (BIA). The
schools, which were often located hundreds or thousands of miles from the children‘s homes,
prohibited the use of Native language, required the wearing of uniforms, and enforced discipline
in an authoritarian manner completely divorced from traditional Native child-rearing practices
(Hull, 1982).
           The objective of boarding schools, therefore, was the control of Native families and
children and their forcible assimilation into the dominant society. The impact of boarding schools
was the erosion of Native language, religion, beliefs, customs, and social norms—the foundation
of the American Indian/Alaska Native worldview and identity (George, 1997). Many left the
boarding school experience with no clear identity, either white or Native, with their sense of
belonging and permanence shattered (Cross et al., 2000). The assimilation process was further
promoted by transferring responsibility for the provision of family and children services from tribal
communities to that of the BIA (Pandey et al., 1999). By 1900, the rearing of Native children was
largely under the control of the federal BIA. Tribes had been effectively stripped of all but the last
vestiges of the natural systems of child protection. Years later, similar misconceptions about
cultural foundations for Native problems contributed to another devastating policy—the Indian
Adoption Project.
           In 1959, a collaborative agreement between the Child Welfare League of America
(CWLA) and the BIA established a ―clearinghouse for the interstate placement of Indian children
with non-Indian families‖ (George, 1997). As a result of this practice shift, large numbers of Native
children were removed from their families, including 395 Native children placed for adoption with
non-Native families (George, 1997; Mannes, 1995). Little attention was paid, either by the BIA or
R13227-0                                          233
CWLA to providing services that would strengthen and maintain a Native child‘s sense of
permanency within the family and community. Because transmission of cultural values,
behaviors, and identity development rely on cross-generational parenting and socialization
(including extended family members), boarding schools, the Indian Adoption Project, and similar
U.S. federal policies had long lasting negative consequences on family childrearing customs
among American Indians/Alaska Natives. As a result, many American Indian/Alaska Native
children in this century have grown up separated from their families of origin, away from their
extended families, and outside their culture (Coontz, 1988). Probably never before in this country
has there been such a concerted effort to transform a group of people by legally manipulating
their children and destroying their sense of belonging and permanence (Jones, 1999). Until 1978,
the forced removal and attempted assimilation of American Indian/Alaska Native children were
among the most devastating U.S. federal policies imposed on Native families (Halverson, Puig, &
Byers, 2000). Today, nearly one half of all Native people were either raised in boarding schools or
parented by adults raised in boarding schools (Bennett, 2003).
           Federal policies have also had another detrimental impact on American Indians/Alaska
Natives. As discussed in the previous section (and in other chapters), Native children and their
families have suffered greatly from practices involving removal of children to out-of-home
placements. Weaver and Yellow Horse Brave Heart (1999) state that historical trauma refers to
cumulative wounding across generations as well as during an individual‘s current life span. ―For
Native people, the legacy of genocide includes distortions of indigenous identity, self-concept,
and values. The process of colonization and varying degrees of assimilation into the dominant
cultural value system have resulted in altered states of an Indian sense of self.‖ A better
understanding of the impacts of historical trauma resulting from a history of forced and unjustified
removals of children and culturally inappropriate service provision is necessary to understand the
inherent distrust of Native people toward the federal government. However, the impacts of this
history are seldom considered by non-Native groups and agencies. For many Native parents,
evidence suggests that parents who themselves spent lengthy periods in adoptive placement or
residential schools as children often have parenting or substance abuse problems that lead to the
removal of their children, often outside their communities, establishing an intergenerational
pattern of dysfunction and removal (Mannes, 1993). Extending or reconnecting the reference
points of belonging and permanence can reconcile people with their cultures and begin healing of
historical trauma.
           In light of the above-noted destructive federal policies, it should also be noted that a
number of federal policies have been positive in promoting tribal capacity to prevent and respond
effectively to identified problems and issues related to permanency. For example, in 1975,
passage of the Indian Self-Determination and Education Assistance Act (PL 93-638) further
increased direct funding to tribal communities and gave them responsibility for the administration
of tribal services. The legislation authorized the BIA and Indian Health Service to contract with
and make grants directly to tribal governments for the provision of federal services, much as the
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other federal agencies do with states and local governments (Brown & Limb, 2003). The Act also
strengthened tribal autonomy by allowing tribal communities to better tailor their family and
children‘s service programs to the specific needs and circumstances of their communities within
three specific areas: 1) tribal self-rule, 2) economic development, and 3) cultural survival (Walke,
1991). While P.L. 93-638 did not provide adequate Congressional and tribal oversight for the
activities it sanctioned (including inadequate tribal fiscal resources), today, largely as a result of
the expansion of tribal authority under self-determination and self-governance policies, tribal
communities have greater control over the programs and initiatives developed for their members.


Removal and the Need for the Indian Child Welfare Act (ICWA)
           As noted, one of the defining characteristics of American Indian/Alaska Native
communities is the removal of hundreds of thousands of children from their natural parents,
extended families, and tribal communities. The rate of out-of-home placements for American
Indian/Alaska Native children has been from 5 to 20 times greater than rates for comparable non-
Native populations (Robin et al., 1999). Prior to 1978, studies by the Association on American
Indian Affairs (AAIA) in 1969 and 1974 revealed that approximately 25% to 35% of all Native
children were placed in foster homes, adoptive homes, or institutions. The decision to remove
these children from their natural families was often a product of state child welfare agents‘ lack of
understanding of American Indian/Alaska Native culture and child-rearing practices (Hollinger,
1992; U.S. House Report 1978).
           A survey of 16 states in 1969 also revealed that approximately 85% of Native children in
foster homes and 90% of non-relative Native adoptees were living with non-Native families (U.S.
House Report, 1978). The results of this survey troubled tribes for a variety of reasons. First, the
placement of so many Native children in non-Native homes threatened the tribes with extinction.
In short, tribes were losing the most basic necessity for survival—a next generation. Second, the
alienation of Native children from their unique tribal cultures and values resulted in a loss of
permanency, belonging, and connection for the Native child and destroyed the bond between
Native children and their extended family support networks (Brown, Limb, Chance, & Munoz,
2002).
           In 1974, Congress initiated its first hearing on the state of Native children in substitute
care. During testimony before the subcommittee, William Byler, then executive director of AAIA,
commented on the statistical evidence uncovered by AAIA, stating the comparatively high rate of
outplacement for Native children was ―the most tragic aspect of Indian life today‖ (U. S. House
Report, 1978). The testimony in 1974 also provided the first official acknowledgment by the
United States government that the unwarranted removal of Native children from their families
represented a systematic attempt to destroy Native tribes and cultures that resulted in negative
outcomes for both tribes and tribal children. In his opening statement, Senator Abourezk (D-SD),
the chairman of the subcommittee, noted that the placement of ―Indian children in non-Indian
settings‖ resulted in ―their Indian culture, their Indian traditions, and, in general, their entire way of
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life…being smothered.‖ Sen. Abourezk continued by declaring that this loss ―strike[s] at the heart
of Indian communities‖ and had been called ―cultural genocide‖ (U. S. House Report, 1978).
During the 1978 hearings on ICWA prior to its passage, the position of the National Indian Tribal
Chairman‘s Association on the need for ICWA was as follows:


           Culturally, the chances of Indian survival are significantly reduced if our children,
           the only real means for the transmission of the tribal heritage, are to be raised in
           non-Indian homes and denied exposure to the ways of their people. Furthermore,
           these practices seriously undercut the tribes‘ ability to continue as self-governing
           communities. Probably in no area is it more important that tribal sovereignty be
           respected than in an area as socially and culturally determiNative as family
           relationships (U.S. House Report, 1978).


           On November 8, 1978, Congress passed the Indian Child Welfare Act (ICWA) in
response to the ―rising concern…over the consequences to Indian children, Indian families, and
Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of
Indian children from their families and tribes through adoption or foster care placement‖
(Mississippi Band of Choctaw Indians v. Holyfield, 1989). ICWA is regarded as the most
significant piece of legislation affecting American Indian/Alaska Native families passed by the
United States Congress (Plantz et al., 1989).


ICWA as Permanency Legislation
           ICWA is all about permanency and the protection of children, support and preservation of
families, and the survival of a people. It is the embodiment of good child welfare practice. ICWA
provides Native parents and tribes the right to decide what‘s best for their children and affirms the
cultural needs of Native children. ICWA also recognizes the notion of ―groupness‖ and the
understanding that Native people place a high value on the support and well-being of the tribe
and extended family (Halverson, et al., 2002). Today, ICWA is viewed as a cultural and legal
victory in the turn of U.S. federal policy toward American Indian/Alaska Native nations‘ self-
determination and focus on tribal and family preservation (Hunt, Gooden, & Barkdull, 2001). For
purposes of this section, emphasis will be placed on ICWA requirements that impact
permanency.
           For the first time in U.S. legislative history, ICWA established a legal framework to
support Native families, specifically by maintaining Native children with Native caregivers in order
to honor tribal sovereignty, preserve cultural and familial ties, and promote belonging and
permanence. Prior to the passage of ICWA, many Native children were removed from their
families and placed in the more preferred permanency option—typically, placement with a white,
middle-class family. Here, state workers and administrators believed that separation (from the
family and tribe) was a ―better‖ permanency option. Therefore, ICWA is important because it not
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only clarifies jurisdictional authority, but it also mandates that ―American Indian definitions of
family be used as a guide for child welfare‖ matters (Red Horse et al., 2000). American
Indians/Alaska Natives, through passage of ICWA, began setting the stage for an updated
orientation toward family preservation and emphasizing extended family in national child welfare
matters. Regarding passage of ICWA and the subsequent effect on child welfare generally, Red
Horse et al. (2000) suggest,


           The functional elements of traditional Indian family systems, including their
           dependence on extended family, community networks, and cross-generational
           relationships, were being reassessed by mainstream observers and gaining
           value as the ―new‖ way to address family and community issues….Thus, in an
           ironic twist of fate, as ICWA set the stage for a model of family preservation for
           Indian children, it also paved the way for preservation legislation for non-Indian
           children.


Procedural Requirements of ICWA
           ICWA accomplishes and promotes permanence through both procedural and
substantive provisions designed to protect Native children prior to removal and by establishing
minimum federal standards for the removal of Native children from their homes and families and
placement ―in…homes which will reflect the unique values of American Indian culture‖ (25 U.S.C.
§1902, 2000). In short, ICWA requires states to follow specific procedures for determining the
need for removal of American Indian/Alaska Native children and promotes their placement with
other Native families, while simultaneously giving tribes themselves a role in determining the
ultimate outcome for their children (Brown et al., 2002). Most important among these procedures
is the opportunity for the child to maintain his or her sense of belonging and permanence.
           ICWA includes several major requirements that state must follow when a Native child
comes to their attention. First, is the proper early identification of the Native child. Here, a state
must determine if the child is enrolled or eligible for enrollment in a federally recognized tribe.
Once a state has determined that the child may be American Indian/Alaska Native, notice must
be sent to the parent(s) and/or custodian(s), as well as the child‘s tribe (25 U.S.C. § 1912 (a)).
The idea behind proper notice is to maximize the opportunity for families and tribes to determine
the fate of their children. Tribes are also allowed to intervene in the case or request transfer to
tribal court.
           One of the requirements of ICWA that directly impacts permanency is the use of ―active
efforts‖ to prevent the breakup of Native families. The active efforts requirement represents a
higher standard than ―reasonable efforts‖ and should include using the resources of the extended
family, tribe, tribal social services, and culturally appropriate ―individual care givers,‖ such as
medicine men or other traditional tribal leaders (e.g., elders) whose skills can be used to keep the
Native family together. The state or county can gain removal of the Native child only by showing
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that such remedial and rehabilitative efforts have been made and subsequently failed. ICWA also
contains higher standards of evidence that the state or county must demonstrate to remove a
Native child. This includes a court finding of ―clear and convincing evidence‖ (for termination of
parental rights the court finding is ―beyond a reasonable doubt‖) that the continued custody of the
child by the parent or Native custodian is likely to result in serious physical and emotional harm to
the child. In most states, the higher standards of evidence significantly heightens the burden
states must meet, making it more difficult to remove the child or terminate the rights of a Native
parent. Further, this finding must be supported by the use of qualified expert witness testimony—
someone who has knowledge of the tribe and its culture.
           Finally, a key component of permanency occurs when a child is placed outside his or her
home; then, where placement preferences are mandated. For foster care placements, the state or
county is required to place the child in the least restrictive setting that most approximates a family
and where his or her special needs, if any, may be met. The child must also be placed within
reasonable proximity to his or her home, with preference being given to 1) placement with a
member of a child‘s extended family; 2) placement in a foster home licensed or approved by the
child‘s tribe; 3) placement in a Native foster home licensed by a non-Native licensing authority; or
4) placement in an institution approved by a tribe or an institution operated by a Native
organization which has a program suitable to meet the child‘s needs. For adoptions, preferences
include 1) placement with a member of a child‘s extended family; 2) placement with other
members of the child‘s tribe; 3) placement with other Native families, including single-parent
families; or 4) placement options preferred by the child‘s tribe (25 U.S.C. §1912-1915, 2002).
When considering the possible permanency outcomes available when a Native child is removed
from his or her home, Cross and McNevins‘ (2003) five culturally appropriate permanency issues,
noted previously in this chapter, are effective ways to ensure permanence.
           The above-noted requirements, if understood and followed, give states a blueprint
necessary for providing culturally appropriate services to American Indians/Alaska Natives,
allowing tribes the opportunity to maintain permanency. Unfortunately, while ICWA has been
successful in setting out permanency promoting requirements, it did not bring about a revolution
in culturally competent practice in American Indian/Alaska Native child welfare services in many
states. Why? Because most systems are still struggling with basic compliance with the law on a
case-by-case basis. Training of state workers on all of ICWA‘s requirements continues to be
inadequate, and the lack of specific enforcement provisions and penalties within the statute
(unlike the serious penalties for noncompliance contained in the Adoption and Safe Families Act
[ASFA] or the Multi-Ethnic Placement Act [MEPA]) has not compelled most states to rigorously
comply with ICWA (Mindell et al., 2003). Further, there is a lack of reliable data on ICWA
compliance—a recent study found only five studies that have been published on ICWA
compliance (Brown et al., 2002). Accurate numbers of American Indian/Alaska Native children in
state custody are vital in understanding and promoting permanence within Native communities.
Cross (2002) summarized these sentiments by stating
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           Ignoring or minimizing ICWA can result in doing unintended damage to children,
           adoptive families, birth families, and tribal communities. Failure to follow the
           provisions of ICWA can result in inappropriate removals, unnecessary family
           disruptions, interrupted adoptions, or severing ties with extended relatives who
           want to provide care. Even if legal consequences do not disrupt adoptions,
           children can suffer lifelong debilitating identity problems as evidenced by the high
           suicide rates for Native youth raised outside their culture. Additionally, failure to
           follow ICWA may prevent a child from accessing rights and resources that may
           be theirs as tribal members.


Current Federal Policies and their Impact on Permanency
           One of the fundamental dilemmas in child welfare revolves around finding and
maintaining the elusive balance between protecting children and preserving families. Therefore,
shortly after the passage of ICWA, Congress passed the Adoption Assistance and Child Welfare
Act (AACWA) in 1980, requiring states to provide programs for prevention of foster care
placement and allotting funding for family preservation services. Following ICWA‘s lead, AACWA
instituted, for the first time in legislative history, a national program for family preservation (Red
Horse, et al., 2001). More recently, passage of the Promoting Safe and Stable Families Act
(PSSF) appropriated funding for states to develop programs emphasizing family preservation
services and community-based family support services (Denby, Curtis, & Alford, 1998). Here,
under family preservation policy, tribal definitions of permanency are considered and promoted.
Courtney (1997) noted, ―In simplest terms, family preservation philosophy emphasizes the
inherent strengths of virtually all families…and gives priority to preserving the permanence of
children‘s intimate relationships with family members when at all possible.‖
           Together, ICWA, AACWA, and PSSF have promoted a major overhaul in child welfare,
emphasizing family support, preservation, and permanency. They also represent a conceptual
shift in child welfare policy from deficit models to focusing more on strength-based models (Limb,
Chance & Brown, in press). Further, these legislative mandates have provided state child welfare
systems the opportunity ―to shift from remedial and reactive systems of removal to systems that
actually supported families and helped them learn skills and acquire resources in a solution-
focused way‖ (Kelly & Blythe, 2000). For American Indians/Alaska Natives, this idea is nothing
new because the relational dynamics that characterize permanency have been traditionally
reinforced by cultural norms. As noted, the concept of ―belonging‖ is rooted in an understanding
of one‘s place and responsibility within the broader context of kinship networks (Red Horse et al.,
2000).
           More recently, Congress passed two additional legislations that have impacted
permanency and family preservation. First, the Multi-ethnic Placement Act (MEPA) of 1994
(amended in 1996 to add the interethnic adoption provisions) has impacted ICWA. The goals of
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MEPA are to 1) reduce the length of time children spend in out-of-home care, and 2) prevent
discrimination in placement decisions based solely on race. While MEPA prohibits states from
delaying or denying adoption and foster care placements on the basis of race or ethnicity
(something that could potentially have great impact on Native children being placed with non-
Native families), it also requires states to recruit prospective adoptive and foster families from
representative racial and ethnic backgrounds. While MEPA mandates new requirements for out-
of-home placements, these new requirements do not affect Native children under ICWA.
American Indian/Alaska Native children have a distinct political status that is separate from a
racial classification (as specified in MEPA). An important component of MEPA is the component
that requires same-race recruitment of foster homes. The National Indian Child Welfare
Association (n.d.) states that the recruitment of adoptive and foster families‘ provision within
MEPA is also important to ICWA and permanency because it requires recruitment of more
culturally appropriate placement families, preferably extended families, and promotes improved
collaboration between Native communities and child placing agencies. Here, MEPA can actually
enhance ICWA compliance by increasing the number of American Indian/Alaska Native families
available for foster care and adoptive placements. Unfortunately, many states still struggle with
recruiting Native families for this purpose.
           The second act that has directly impacted permanency occurred on November 19, 1997.
An amendment to Title IV-B and Title IV-E of the Social Security Act known as the Adoption and
Safe Families Act (ASFA) was signed into law. ASFA was enacted to address the issue of
children spending long periods of time in foster care and mandates that permanency plans and
permanent placements be done within a year after the child enters foster care. Red Horse et al.
(2001) notes that public opinion influenced policymakers to focus on adoption as a preferred
option in permanency planning. By passing ASFA, Congress changed and clarified a wide range
of policies established under the AACWA of 1980. ASFA establishes new timelines for
termination of parental rights, changes reasonable effort provisions, provides numerous
incentives and provisions to assist adoptions, and provides other options including kinship care
and independent living (Graham, 2002). Policies that supported American Indian/Alaska Native
permanency values were largely ignored under ASFA. Further, under certain circumstances,
ASFA does not require services to be provided to parents (e.g., in case of abandonment or
sexual abuse) or payment to be made to a kinship provider. Like AACWA, ASFA made no direct
reference to ICWA and, thus, changed none of the requirements for implementing ICWA.
However, Simmons and Trope (1999) point out that ―ASFA did not specifically address how its
provisions would interface with the Indian Child Welfare Act, principles of tribal sovereignty,
jurisdictional or service delivery issues unique to Indian children. This oversight presents
challenges to ensuring culturally appropriate services to American Indian/Alaska Native families
as mandated by ICWA within the framework of ASFA. Further, ASFA has changed the emphasis
in child welfare from family preservation to that of child safety and more rapid permanent
placement through adoption.
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           Of most concern to American Indian/Alaska Native people, ASFA has failed to consider
the cultural and legal requirements of Native children and the wide range of permanency options
available to them. If neglect referrals increase due to new time limits on financial assistance
imposed by the Temporary Assistance for Needy Families (TANF) program, as anecdotal
evidence suggests (Cross et al., 2000), parental rights may be jeopardized through the promotion
of more timely adoptions and permanent placements outside the Native child‘s culture (Hunt et
al., 2001). Termination of parental rights is ―a key factor in the dominant society‘s child welfare
system‖; in American Indian/Alaska Native child welfare, however, it has the potential of severing
the child‘s connection to an extended family or tribe (NICWA, 1996). Many tribes, in fact, do not
believe in the termination of parental rights but place more value on relationships than on
timelines. Additionally, substance abuse, a major contributor to child neglect among Native
families, may require rehabilitation beyond ASFA-specified limits (Hunt et al., 2001).
           While ICWA and ASFA might seem to conflict, when properly applied together these acts
can strengthen permanency outcomes for children, including seeking out all possible solutions to
permanency. As noted previously, ICWA requires ―active efforts‖ to prevent the breakup of the
Native family. Active efforts impose a higher standard than reasonable efforts and apply
regardless of ASFA. Further, ICWA requires higher standards of evidence for placement or
termination of parental rights and requires that such decisions be supported by a qualified expert
witness. Similar to ASFA, ICWA‘s provisions are designed to provide protections for the child.
While ICWA prevents unnecessary placements and protects a child‘s sense of belonging to a
family, extended family, and community, ASFA protects the child‘s right to services in a timely
fashion and avoids children getting lost in the system. Therefore, ASFA can only be effective for
Native children when applied jointly with ICWA. For cases in which appropriate services to the
family have not been provided, ASFA states that agencies have the option of not petitioning for
termination of parental rights. While ICWA designates appropriate services for Native children,
Cross (2000) suggests that states ―must comply with ICWA if they are to be in full compliance
with ASFA. These two very different laws, when applied appropriately together seek similar
outcomes: safety and permanency as well as developmental well-being for children and families.‖
Finally, under ASFA, kinship care is recognized for the first time as a legitimate solution to
permanency.
           It is also important to note that the federal government has enforced ASFA by making
federal funding, under Title IV-E, for foster care contingent on states following its rules and
procedures. Tribes were not included in the act, but some tribes have been able to receive Title
IV-E funds through contracts or agreements with states (Brown et al., 2000). Legislation is now
pending that would make Title IV-E funding available directly to tribes.


Barriers to Permanency
           In this section, barriers to permanency are broken down under two major themes—
resources and policy. From a resource standpoint, one of the main reasons why permanency
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does not occur is a lack of resources to enforce compliance with ICWA and other policies that
promote permanency. As noted, when ICWA was passed, no funding component was included to
promote state compliance with ICWA or to conduct compliance evaluations. Unlike many other
federal child welfare legislative actions, ICWA currently does not contain any penalty provisions
for noncompliance. Moreover, current legislation generally provides few incentives that actually
encourage permanency. In fact, many of the funding incentives actually discourages this type of
permanency focus. Where this plays out is in training of state workers, collaboration with tribes
(an example being inadequate resources for tribes to staff notices in a timely manner to states),
and ensuring a viable pool of Native foster and adoptive families. Therefore, until there is federal
accountability for compliance and permanence (including incentives for compliance), no amount
of encouragement will result in the fulfillment of culturally appropriate permanency outcomes for
Native families and children.
           From a policy standpoint, one of the major barriers to permanency for American
Indian/Alaska Native children centers on a ―one size fits all‖ mentality among some non-Natives.
For example, Cross and McNevins (2003) state that the non-Native culture places a very high
value on individualism, to the point of almost considering children as persons who can be placed
in almost any suitable situation and grow up happy and successful so long as they are able to
bond with another individual. While Native culture also values individuals, it also defines an
individual more in the context of relationships (within the clan and extended family). Any removal
of a child from that context with no further reference to it is a much greater disruptive act than it is
considered to be in the non-Native culture. American Indian/Alaska Native culture also ―views the
removal of a child from the extended family into which he or she is born as disruptive to the child
and to the family as well, depriving the family of its right to the child and its opportunity to
discharge its responsibilities.‖
           Although ASFA timelines have discouraged this, many states, unsure how to handle a
case involving a Native child under ICWA, list ―long-term foster care‖ as the permanency goal.
For tribes, this goal is not acceptable in that it does not accomplish permanency. Increasingly,
federal and state laws have mandated termination of parental rights and adoption for children
who cannot return to their own biological families, often to ensure that the child will be eligible for
adoption subsidy funds. For most tribes, this is also culturally unacceptable and is the least
desirable option due to the priority on maintaining permanence in the context of the extended
family and tribe. One tribal representative explained that his tribe, like others, had no word for
adoption in their tribal language. This individual went on to say, ―Adoption for most Indians is only
for someone the family knows and maintains all of the child‘s connections to the family and tribe‖
(Brown et al., 2002). Other means are seen as appropriate for achieving permanency.
           Another barrier to permanency is the existing Indian family doctrine that has established
an exemption from ICWA's mandates where the biological parents of the Native child fail to
maintain a sufficient connection with the tribe. In deciding whether a child is a member of a Native
family, courts have looked at whether a child was taken from parents who maintain an American
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Indian/Alaska Native family unit. If the court finds that the parents do not constitute an existing
Indian family, then courts have found that the preservation of the Native family is not at issue. In
these cases, courts have ruled that the purpose behind ICWA—to preserve Native culture and
promote the stability and security of tribes and families—is not frustrated. Thus, when the existing
Indian family doctrine is applied, the removal of a child is not in violation of ICWA since the Act,
the argument goes, does not apply to that child. Tribes believe that the social, cultural, or political
affiliation tests that are often used by courts incorporate criteria more likely to create subjective
rules rather than allowing the tribes to make the final determination as to appropriate permanency
outcomes. Therefore, policies that conflict or do not allow for American Indian/Alaska Native
definitions of permanence need to be amended or changed. Additional training must also be
provided to ensure that states and courts understand and promote these culturally appropriate
outcomes.


Models that Demonstrate Success
           American Indians/Alaska Native communities are finding ways to promote permanency
and belonging by the reaffirming and teaching of Native languages, traditional and cultural values,
and spiritual practices. One of the many positive aspects of this movement is a blossoming of
innovative, community-based programs that emphasize focus on Native resiliency. Recent
emphasis on family group conferences have provided American Indian/Alaska Native families
with the opportunity to formulate a plan of protection for their children and carry out the plan in a
way that offers a real chance for success (Deserly & Salois, n.d.). In the family group conference
model the family is seen as the ―expert‖ and the strengths of the family are both supported and
reinforced by allowing the family to be the maker/shaper of the plan. Participants in the
conference include: parents, extended family members, as well as, possibly long-time family
friends, the family‘s religious leaders, mental health and medical professionals, school staff,
attorneys, and any other significant people the family wishes to include (Deserly & Salois). In
order for family group conferences and similar permanency-promoting models to be incorporated
into practice, more studies need to be done that demonstrate its effectiveness in practice.
Additional training and resources are also needed for this model to be utilized more fully.
           Another model that has proven successful in Native communities is that of holistic
interventions. The National Indian Child Welfare Association (1995) states that the holistic view of
the family and communities balance four life-areas: 1) mental/emotional functioning; 2) physical
well-being; 3) spiritual beliefs and practices; and 4) family context. This view provides the best
pictures of a family‘s capacity to provide a sufficient level of care for their children. NICWA (2001)
also states that in order for social service delivery systems to be effective in working with
American Indian/Alaska Native communities that a number of paradigm shifts must occur. The
first paradigm shift encompasses a movement toward partnering with families in providing
interventions that are responsive to Native families. These intervention practices ―assume that
family members are truly listened to, are provided the necessary information and assistance to
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make informed and intelligent choices, and that intervention practices are responsive and tailored
to individual children‘s needs within an interdependent system of families.‖
           The second paradigm shift suggests that social service delivery systems must move
away from intervention practices that focus primarily on correcting deficits and weaknesses
toward practices that build upon and strengthen child, family, and tribal capabilities. ―Fundamental
to this way of thinking is the idea that culture is a resource, a source of strength that families can
readily draw on, and that interdependence is an expression of strength.‖ The third paradigm shift
moves away from defining solutions to Native family needs solely in terms of professional
services toward practices that utilize traditional knowledge with formal and informal community
linkages to promote a mutually supportive relationship. ―By advancing traditional ways of knowing
alongside community resources, family functioning is an empowering activity which enhances the
interdependent nature of communities.‖
           The fourth paradigm shift concerns a change in help-giving practices to create
opportunities for Native families to utilize existing strengths, learn new skills and acquire
competencies that all have empowering consequences. ―These new roles and responsibilities
enhance interdependency within the community. The goal is to promote family interdependence
skills and resources in ways that truly result in empowered families and stronger communities‖
(NICWA, 2001). Recent research in family and child welfare (Blair, 2002; Goodluck, 2002) draws
attention to these strength-based models. These approaches identify family strengths and
resources, as well as problems to be addressed, as focal points for the intervention process. The
concept of wraparound emphasizes decision-making participation by all family and extended
family members in the development and implementation of case plan. The goal of strength-based
interventions is to facilitate a process of capacity-building within families. This model uses
extended family and community resources. Wraparound and strength-based multi-systems
models mirror traditional tribal practices. Native people say, ―Do not remove the child, remove the
dysfunction‖ (Red Horse, et al., 2001). For example, Wattenberg (2000) notes ―Everybody has
talked about extended family. The families we‘re working with are often isolated from their own
families. The wraparound concepts include redeveloping family teams, not just professionals, but
people who are already involved with the family‘s life. You hear the family's story, and in that
process you find out who the relatives are. Who are the people they turn to? Is it the Little League
coach if their kids are in sports? Is it the neighbor? Is it the minister? Whoever it is, you get them
involved in this family team. This is a very time consuming process.‖
           With regard to family preservation, Mannes (1993) states that promoting permanency
involves taking a major step beyond simply recognizing the difficulties experienced by American
Indian/Alaska Native families and the importance of working with them. This represents a
fundamental metamorphosis in child welfare—from a model based on child rescue and placement
to one predicated upon family support and preservation (Mannes, 1993; Stehno, 1986; Whittaker,
1991). Whittaker (1991) suggests that the standard approach of traditional child welfare models
has been characterized by categorical funding and services, a philosophy based on saving
R13227-0                                         244
children, an allegiance to pathologies as the basis for assessment and treatment, and a hands-off
or compartmentalized response to parents. A culturally responsive family preservation approach,
however, embodies a service continuum, delivering services concerned with basic life skills and
environmental problems to children and families in normalized settings such as the home,
rendering services that support and strengthen families, and employing the person-in-
environment perspective (Mannes, 1993).
           Finally, as federal laws and policies have expedited child welfare matters, often resulting
in termination of parental rights, tribes have exercised their sovereign rights and responded by
formalizing their own traditions in customary adoptions. Customary adoption refers to a traditional
practice recognized by the tribal community which gives a child a permanent parent-child legal
relationship with someone other than the child‘s birth parent without termination of parental rights.
―The advantages are that customary adoption fits culturally with the extended family concept, and
it formalizes and protects on-going care of the child by an extended family member or other
recognized potential parents. It eliminates the philosophic barriers to adoption as they happen in
the mainstream society, namely the abhorrence of termination of parental rights (Cross &
McNevins, 2003). Cross and McNevins further suggest, ―It is our fundamental belief that culturally
based tribal adoption law must provide the legal means to ensure a child‘s continuity of
relationships and community as well as a sense of belonging over time.‖
           Therefore, in order for successful permanency models to be developed and utilized with
Native families, the definition of permanency, contained in current legislative acts, must be
expanded to give tribes more culturally appropriate options for ensuring permanency (including
incentives). Oftentimes, states and tribes are very limited in what models and services they
provide, due to a lack of resources and federal support in this area.


Conclusion
           Throughout this chapter the communal nature of American Indian/Alaska Native society,
which offers the child strength, a sense of purpose, and a sense of commonality with other
members of the group, has been highlighted. Further, the importance of permanence over time
continues to be a vital part of Native culture and well-being. Although permanency planning and
achieving permanency have been options of the child welfare field since the early 1980s, post-
permanency planning—sustaining permanency—has received less attention. Freundlich and
Wright (2003) suggest that permanency is not simply a single placement event but rather, a
process that involves a range of child and family well-being issues. For Native communities,
culturally appropriate permanency outcomes include (in rank order): 1) remaining safely with
family/kin; 2) reunifying safely with family/kin; 3) living safely with in guardianship with kin or other
known and caring adult (close to kin); 4) adoption/customary adoption by kin, foster parent, or
another family; and 5) other planned alternatives approved by the tribe (Cross & McNevins,
2003). Therefore, the overall goal of permanency from a tribal perspective is to promote policies
and resources for the development of family-centered, family-focused, and family-based
R13227-0                                           245
approaches designed to meet the needs of families and children within their own tribal
communities.




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           Welfare, 65(3), 231-240.
R13227-0                                          250
                                                      th             nd
United States House Report. (1978). No. 1386, 95 Congress, 2              Session. Establishing
           standards for the placement of Indian children in foster or adoptive homes, to prevent the
           breakup of Indian families, July 24, 1978. Washington, DC: United States Government
           Printing Office.


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           from http://www.indianeduresearch.net/sovereignty.pdf.


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           Human Behavior in the Social Environment, 2(1/2), 19-33.


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           research. Families in Society: The Journal of Contemporary Human Services, 72(5), 294-
           300.




                              Tribal Courts and Jurisdiction in Child Welfare
                                              Jack F. Trope


                                                 Abstract
           American Indian/Alaska Native children who are victims or potential victims of child abuse
and neglect are subject to a maze of jurisdictional rules that may affect how their problems are
addressed. The federal government, states, and tribes all have roles to play. Which sovereign
entity has jurisdiction to determine questions of child abuse and neglect, who investigates, how
services are provided, and whether or not services are available may depend upon whether the
abuse or neglect is civil or criminal, who the perpetrator is, whether it takes place in Indian
Country, and where the child lives and is domiciled (maintains a permanent residence). This
chapter is designed to discuss the legal framework applicable to child abuse and neglect
involving American Indian/Alaska Native children. Operational and practice issues are covered in
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other chapters. Thus, this chapter will do the following: (1) discuss the history of jurisdiction,
including the inherent sovereign authority of Indian tribes; (2) summarize federal laws that
specifically pertain to child welfare and child abuse and neglect involving American Indian/Alaska
Native children; (3) discuss the history and current status of the tribal court system; and (4)
discuss in more detail the jurisdictional framework created by these laws, taking into account
preexisting tribal sovereignty and identify specific jurisdictional issues that affect the legal and
actual treatment of child abuse and neglect cases, including the funding of child welfare, child
abuse and neglect and foster care programs.


                                                An Overview of Jurisdiction
            Federal common law has long recognized that Indian nations are distinct political
                                                                      i
communities retaining their original natural rights…‖ Indian tribes possess ―attributes of
                                                                          ii
sovereignty over both their members and their territory.‖ As summarized by one court, ―Indian
tribes are neither states, nor part of the federal government, nor subdivisions of either. Rather,
they are sovereign political entities possessed of sovereign authority not derived from the United
States, which they predate . . . [and are] qualified to exercise powers of self-government . . . by
                                                        iii
reason of their original tribal sovereignty.‖                 Congress has been recognized as having the
                                                                 iv
authority to limit the exercise of this sovereignty , and the courts have held that tribes have been
                                                                                         v
implicitly divested of certain powers by reason of their ―dependent status.‖ However, in
exercising its authority over American Indian/Alaska Native affairs, there is a ―distinctive
obligation of trust incumbent upon the [federal] Government‖ that ―involves moral obligation of the
                                  vi
highest responsibility.‖               In recent years, Congress has reaffirmed the principle of tribal self-
                                   vii
government repeatedly.
            Tribal exercise of jurisdiction over the domestic relations of tribal members who maintain
tribal relations has been recognized in a long series of cases dating from the 1800s to the
present. In 1916, the United States Supreme Court acknowledged that ―personal and domestic
relations of the Indians‖ have been regulated from ―an early period . . . according to their tribal
                           viii
customs and laws.‖                This has meant that states have no jurisdiction over such matters when
they involve members of the tribe domiciled or resident on the reservation because it ―would
subject a dispute arising on the reservation to a forum other than the one they have established
                      ix
for themselves.‖
            Criminal jurisdiction over crimes on the reservation, such as criminal sexual abuse, has
also been retained by tribes as part of their inherent sovereign authority when the crimes have
                                                                               x
been committed by American Indian or Alaska Native people. However, there are limitations on
                                                                                                        xi
the exercise of criminal tribal authority established by the Indian Civil Rights Act (ICRA).                 The
ICRA limits punishment in tribal cases in criminal matters to one year in prison and a $5,000 fine
           xii
or both.         See the section of this chapter below on the history of tribal courts for more
background on the exercise of sovereignty by American Indian/Alaska Native tribes.

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           Congress and the courts have intruded upon tribal exclusive jurisdiction to some extent.
                                                                                                        xiii
In 1953, during the termination era, Congress passed Public Law 83-280 (hereinafter P.L. 280).
It provided for certain states, some as a mandatory matter and others at their option, to exercise
criminal jurisdiction over all American Indian/Alaska Native people living within the state and over
―civil causes of action‖ involving American Indian/Alaska Native people residing in the state as
well. The following chart, reprinted with permission (Pavar, 2002), summarizes the jurisdiction
that has been asserted by states pursuant to P.L. 280.
           The six mandatory states acquired the following jurisdiction under P.L. 280


State              Extent of Jurisdiction


Alaska             All Indian Country within the state, except the Annette Islands


California         All Indian Country within the state


Minnesota          All Indian Country within the state, except the Red Lake Reservation


Nebraska           All Indian Country within the state


Oregon             All Indian Country within the state, except the Warm Springs Reservation


Wisconsin          All Indian Country within the state, except the Menominee Reservation


           Ten option states sought to acquire jurisdiction under P.L. 280. Only Florida accepted
the full jurisdiction given the mandatory states. The other nine sought only partial jurisdiction.
The pattern of state jurisdiction within the option states is as follows:




State              Extent of Jurisdiction


Arizona            All Indian Country within the state, limited to enforcement of the state‘s air and
                   water pollution control laws


Florida            All Indian Country within the state


Idaho              All Indian Country within the state, limited to the following subject matters:
                   compulsory school attendance; juvenile delinquency and youth rehabilitation;

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                   dependent, neglected, and abused children; mental illness; domestic relations;
                   operation of motor vehicles on public roads


Iowa               Only over the Sac and Fox Indian community in Tama County, limited to certain
                   criminal and civil jurisdiction


Montana            Limited to jurisdiction over any reservation that gives its consent. In 1965, the
                   Confederated Salish and Kootenai Tribes consented to some state jurisdiction,
                   but in 1993, at the tribe‘s request, the state returned most of its misdemeanor
                   jurisdiction to the tribe, retaining its felony jurisdiction.


Nevada             Over the Ely Indian Colony and any other reservation that may subsequently
                   consent


North Dakota       Limited to civil jurisdiction over any reservation that gives its consent. No tribe
                   has consented.


South Dakota       All Indian Country within the state with tribal consent. When no tribe consented,
                   the state attempted to pass laws conferring jurisdiction on the state, but these
                   laws were invalidated by courts, primarily on procedural grounds, and the state
                   has no P.L. 280 jurisdiction.


Utah               All Indian Country within the state with tribal consent. No tribe has consented.


Washington         All fee patent (deeded) land within Indian Country. Jurisdiction on trust land is
                   limited to the following eight subjects unless the tribe requests full jurisdiction:
                   adoptions, dependent children, juvenile delinquency, compulsory school
                   attendance, public assistance, domestic relations, mental illness, and operation
                   of motor vehicles on public roads. Several tribes have requested state
                   jurisdiction, including the Chehalis, Muckleshoot, Nisqually, Quileute, and the
                   Tulalip.


           ―Indian Country‖ is defined as all land within the boundaries of an American Indian or
Alaska Native reservation, all dependent American Indian/Alaska Native communities, and all
                                                                              xiv
American Indian/Alaska Native allotments that remain in trust status.
           The ―civil cause of action‖ phrase in P.L. 280 has been interpreted to mean that state
courts in P.L. 280 states have jurisdiction over civil cases filed by or against individual American
Indians in court but has not been interpreted to authorize states to exercise general civil
                                       xv
regulatory jurisdiction over tribes.        A state is exercising civil regulatory jurisdiction when it enacts
R13227-0                                               254
a law or regulation that permits certain conduct but which subjects that conduct (e.g., regulates it)
by prescribing rules that govern how those permitted activities can take place. For example,
people are permitted to drive automobiles but only if they follow government rules requiring them
to obtain a driver‘s license. As discussed later, there is legal precedent that is helpful in
interpreting the meaning of this phrase in the context of child welfare, but the interpretation has
                                                                       xvi
been the subject of litigation and is not definitively established.
           In the case of criminal matters, state concurrent jurisdiction in P.L. 280 states over crimes
by American Indians in Indian Country is clear. In non-P.L. 280 states, the federal government
has concurrent jurisdiction over most criminal activity committed by American Indians in Indian
Country and exclusive jurisdiction over non-Indian crime in Indian Country in some circumstances
                                                            xvii                                        xviii
based upon two federal statutes—the Major Crimes Act               and the Indian Country Crimes Act.
           The Major Crimes Act provides the federal government with concurrent jurisdiction over
American Indian/Alaska Native perpetrators, regardless of the victim, when the crime is a ―major‖
crime. For purposes of this study, relevant major crimes include murder, manslaughter,
kidnapping, rape, incest, sexual abuse of a minor, and assault with a dangerous weapon. The
Indian Country Crimes Act provides for federal criminal jurisdiction in cases where there is a non-
Indian accused and an American Indian or Alaska Native victim or when there is an American
Indian or Alaska Native accused and a non-Indian victim, the crime is not a ―major‖ crime, or the
tribe has not acted to punish the accused.
           Finally, regardless of whether a state is a P.L. 280 state, case law recognizes that tribes
do not have the authority to exercise criminal jurisdiction over non-Indians committing crimes and
that states have exclusive jurisdiction over crimes committed by non-Indians against non-Indians,
                                              xix
regardless of where the crimes take place.
           The following chart, reprinted with permission, summarizes the jurisdictional framework in
non-P.L. 280 states for crimes committed in Indian Country:


Table 4: When the Crime Committed Is a ―Major‖ Crime


Persons Involved                                      Jurisdiction


Indian accused, Indian victim                         Federal government (Major Crimes Act) and
                                                                   tribal government (inherent
                                                                   sovereignty)


Indian accused, non-Indian victim                     Federal government (Major Crimes Act) and
                                                                   tribal government (inherent
                                                                   sovereignty)



R13227-0                                            255
Non-Indian accused, Indian victim                    Federal government only (Indian Country
                                                             Crimes Act)



Table 5: When the Crime Committed Is Not a ―Major‖ Crime


Persons Involved                                     Jurisdiction


Indian accused, Indian victim                        Tribal government only (inherent sovereignty)


Indian accused, non-Indian victim                    Federal government (Indian Country Crimes
                                                             Act) and tribal government (inherent
                                                             sovereignty)


Non-Indian accused, Indian victim                    Federal government only (Indian Country
                                                             Crimes Act)


Non-Indian accused, non-Indian victim                State government only




Federal Child Welfare/Child Abuse Laws
           Though there are a myriad of statutes that may be relevant to the issues of child abuse
and neglect of American Indian/Alaska Native children, there are a few laws of particular and
special importance that provide the basic legal framework for considering these issues.


Indian Child Welfare Act
                                                                              xx
           In 1978, Congress enacted the Indian Child Welfare Act (ICWA).          The Indian Child
Welfare Act ―was the product of rising concern in the mid-1970s over the consequences to
American Indian/Alaska Native children, American Indian/Alaska Native families and American
Indian/Alaska Native tribes of abusive child welfare practices that resulted in the separation of
large numbers of American Indian/Alaska Native children from their families and tribes through
                                                                    xxi
adoption or foster care placement, usually in non-Indian homes.‖          The evidence presented
before Congress revealed that ―25-35% of American Indian/Alaska Native children had been
                                                                                               xxii
separated from their families and placed in foster homes, adoptive homes or institutions. ‖
           Studies by the Association on American Indian Affairs (AAIA) had reported that American
Indian/Alaska Native children were placed in foster care far more frequently than non-Indian

R13227-0                                         256
children. This was true of all 19 states surveyed, with American Indian placement rates ranging
from 2.4 times the non-Indian rate in New Mexico to 22.4 times the non-Indian rate in South
Dakota.         The percentage of American Indian/Alaska Native children placed in non-Indian foster
homes in those states that reported this information ranged from 53% in Wyoming to 97% in New
      xxiii
York.
              Moreover, ―[t]he adoption rate of American Indian/Alaska Native children was eight times
that of non-Indian children [and] [a]pproximately 90% of the American Indian/Alaska Native
                                                        xxiv
placements were in non-Indian homes.‖                          All but one of the states surveyed also had a greater
rate of American Indian/Alaska Native children placed for adoption than was the case for non-
Indians. The American Indian/Alaska Native adoption rate in the most extreme case—the State of
                                                                     xxv
Washington—was 18.8 times the non-Indian rate.                             The percentage of American Indian/Alaska
Native children placed in non-Indian adoptive homes ranged from 69% in Washington to 97% in
                 xxvi
Minnesota.
              Congress had initiated its first hearing on the state of American Indian/Alaska Native
children in substitute care in 1974. During testimony before the subcommittee, William Byler,
then executive director of AAIA, commented on the statistical evidence that had been uncovered
by the organization, stating that the high rate of outplacement for American Indian/Alaska Native
                                                                              xxvii
children was ―the most tragic aspect of Indian life today.‖                           In his opening statement, Senator
Abourezk (D-SD), the chairman of the subcommittee, noted that the placement of ―Indian children
in non-Indian settings‖ resulted in ―their Indian culture, the Indian traditions, and in general, their
entire way of life . . . being smothered.‖ Senator Abourezk continued by declaring that this loss
                                                                                                             xxviii
―strike[s] at the heart of Indian communities‖ and has been called ―cultural genocide.‖
              Congress found that this extraordinary and unwarranted rate of placement in out-of-
home, non-Indian households was not in the best interests of American Indian/Alaska Native
tribes, families, and children. In enacting ICWA, Congress was concerned about both the ―impact
on the tribes themselves of the large numbers of children adopted by non-Indians . . . [and] the
                                                                                                                  xxix
detrimental impact on the children themselves of such placements outside their culture.‖
Congress noted that ―[r]emoval of Indian children from their cultural setting seriously impacts on
long-term tribal survival and has damaging social and psychological impact on many individual
                                                         xxx
American Indian/Alaska Native children.‖
              In the case of American Indian/Alaska Native tribes, the court specifically found that
―there is no resource that is more vital to the continued existence and integrity of Indian tribes
                                    xxxi
than their children . . .‖                 This concern was also expressly reflected in the floor statements of the
principal sponsor in the House, Rep. Morris Udall (D-AZ), who stated that ―Indian tribes and
Indian people are being drained of their children and, as a result, their future as a tribe and a
people is being placed in jeopardy,‖ and its minority sponsor, Rep. Robert Lagomarsino (R-CA),
who said that ―this bill is directed at conditions which . . . threaten . . . the future of American
                        xxxii
Indian tribes.'‖                As the Montana Supreme Court stated in analyzing the congressional intent
underlying ICWA:
R13227-0                                                          257
           Preservation of Indian culture is undoubtedly threatened and thereby thwarted as
           the size of any tribal community dwindles. In addition to its artifacts, language
           and history, the members of a tribe are its culture. Absent the next generation,
           any culture is lost and necessarily relegated, at best, to anthropological
                                                 xxxiii
           examination and categorization.


Similarly, during the 1978 hearing, the National Indian Tribal Chairman‘s Association testified as
follows:


           Culturally, the chances of Indian survival are significantly reduced if our children,
           the only real means for the transmission of the tribal heritage, are to be raised in
           non-Indian homes and denied exposure to the ways of their people.
           Furthermore, these practices seriously undercut the tribes‘ ability to continue as
           self-governing communities. Probably in no area is it more important that tribal
           sovereignty be respected that in an area as socially and culturally determinative
                                      xxxiv
           as family relationships.


           Congress was also very concerned about ―the placement of Indian children in non-Indian
homes . . . based in part on evidence of the detrimental impact on the children themselves of
                                              xxxv
such placement outside their culture.‖               Testimony at Congressional hearings was replete with
examples of American Indian/Alaska Native children placed in non-Indian homes and later
suffering from debilitating identity crises when they reached adolescence. This phenomenon
occurred even when the children had few memories of living as part of an American Indian or
Alaska Native community. As the Senate Select Committee on Indian Affairs noted in its report
on ICWA, ―Removal of Indians from Indian society has serious long-and short-term effects...for
                                                                                                xxxvi
the individual child . . . who may suffer untold social and psychological consequences.‖                For
example, in testimony submitted by the American Academy of Child Psychiatry, it was stated:


           There is much clinical evidence to suggest that these Native American children
           placed in off-reservation non-Indian homes are at risk in their later development.
           Often enough they are cared for by devoted and well intentioned foster or
           adoptive parents. Nonetheless, particularly in adolescence, they are subject to
           ethnic confusion and a pervasive sense of abandonment with its attendant
                                     xxxvii
           multiple ramifications.


Likewise, Dr. Joseph Westermeyer, a University of Minnesota social psychiatrist, testified
                                                 xxxviii
concerning patients that he had treated:

R13227-0                                                   258
           [t]hey were raised with a white cultural and social identity. They are raised in a
           white home. They attended predominantly white schools, and, in almost all
           cases, attended a church that was predominantly white, and really came to
           understand very little about Indian culture, Indian behavior, and had virtually no
           viable Indian identity. They can recall such things as seeing cowboys and
           Indians on TV and feeling that Indians were a historical figure but were not a
           viable contemporary social group.


           Then during adolescence, they found that society was not to grant them the white
           identity that they had. They began to find this out in a number of ways. For
           example, a universal experience was that when they began to date white
           children, the parents of the white youngsters were against this, and there were
           pressures among white children from the parents not to date these children . . .
           The other experience was derogatory name calling in relation to their racial
           identity . . .


           [t]hey were finding that society was putting on them an identity which they didn't
           possess and taking from them an identity that they did.


In addition, Congress heard considerable testimony on the importance of the extended family in
American Indian/Alaska Native culture. As the House Interior and Insular Affairs Committee
Report explained:


           [t]he dynamics of Indian extended families are largely misunderstood. An Indian
           child may have scores of, perhaps more than a hundred, relatives who are
           counted as close, responsible members of the family . . . The concept of the
           extended family maintains its vitality and strength in the Indian community. By
           custom and tradition, if not necessity, members of the extended family have
           definite responsibilities and duties in assisting in childbearing.


Thus, Congress had before it evidence that, in most American Indian/Alaska Native cultures, a
child is considered part of a larger extended family and that placement of a child outside that
family is a loss felt by the entire family.
           Congress determined that a large part of the cause for this American Indian/Alaska
Native child welfare crisis that was devastating American Indian/Alaska Native tribes, children,
and families rested with state agencies and courts. Congress found that ―the States, exercising
their recognized jurisdiction over American Indian/Alaska Native child custody proceedings
through administrative and judicial bodies, have often failed to recognize the essential tribal
relations of American Indian/Alaska Native people and the cultural and social standards prevailing
R13227-0                                            259
                                                                                       xxxix
in American Indian/Alaska Native communities and families.‖                                    The House Committee Report
specifically recognized ―. . . the failure of State officials, agencies, and procedures to take into
account the special problems and circumstances of the Indian families and the legitimate interest
of the Indian tribe in preserving and protecting the Indian family as the wellspring of its own
           xl
future.‖         Statements by Rep. Morris Udall, House sponsor of ICWA, stated that ―'state courts and
agencies and their procedures share a large part of the responsibility' for crisis threatening 'the
                                                                               xli
future and integrity of Indian tribes and Indian families.'‖                         State systems operated in virtually an
unfettered fashion. As Congressman Robert Lagomarsino, Republican co-sponsor of ICWA
stated in explaining his support for ICWA, ―[G]enerally there are no requirements for responsible
tribal authorities to be consulted about or even informed of child removal actions by non-tribal
                                             xlii
government or private agents.‖                      The result of this systemic failure was summarized in the House
Report as follows:


            (1) . . . many social workers, ignorant of Indian cultural values and social norms,
            make decisions that are wholly inappropriate in the context of Indian family life
            and so they frequently discover neglect or abandonment where none exists.


            (2) The decision to take Indian children from their natural homes is, in most
            cases, carried out without due process of law...Many cases do not go through an
            adjudicatory process at all, since the voluntary waiver of parental rights is a
            device widely employed by social workers to gain custody of children. Because
            of the availability of waivers and because a great number of Indian parents
            depend on welfare payments for survival, they are exposed to the sometimes
            coercive arguments of welfare departments.


            (3) . . .agencies established to place children have an incentive to find children to
                           xliii
            place.


            For these reasons, the primary mechanism utilized by Congress to address this crisis
                                                                                                                           xliv
was to ―curtail state authority‖ and to strengthen tribal authority over child welfare matters.                                   The
ICWA ―is based upon the fundamental assumption that it is in the child‘s best interest that its
                                                       xlv
relationship to the tribe be protected.‖                     Thus, the act recognizes exclusive tribal jurisdiction over
                                                                                      xlvi
reservation-domiciled American Indian/Alaska Native children;                                provides for the transfer of off-
reservation state court proceedings to tribal court, absent parental objection or good cause to the
                xlvii
contrary;               recognizes the right of American Indian/Alaska Native tribes to intervene in state
      xlviii
court;          requires state courts to accord full faith and credit to tribal public acts, records and court
                    xlix                                                                                         l
judgments;                 requires notice to American Indian/Alaska Native tribes by state courts ; provides
American Indian/Alaska Native tribes with the right to challenge and invalidate state placements that
                                                                          li
do not conform with certain of the act's requirements; and recognizes, as a matter of federal law,
R13227-0                                                            260
tribally-established placement preferences for state placements of off-reservation American
                                   lii
Indian/Alaska Native children.
           Moreover, ICWA includes a number of other provisions that are designed to keep families
together or ensure placement with extended family or tribal members. These provisions also directly
or indirectly serve to protect the relationship between the tribe and tribal children. Thus, the Act
establishes stringent substantive standards for involuntary foster care placement of an American
Indian or Alaska Native child or termination of the parental rights of a parent of an American Indian or
                      liii
Alaska Native child; requires (absent a different tribal standard) that adoptive placements of
American Indian/Alaska Native children under state law be made preferentially with the child's
extended family, other members of the American Indian or Alaska Native child's tribe or other
                                                                                       liv
American Indian or Alaska Native families, in that order, absent good cause; requires (absent a
different tribal standard) that foster care placements of American Indian or Alaska Native children
under state law be made preferentially with the child's extended family, a tribally-licensed foster
home, an American Indian or Alaska Native foster home licensed by a non-American Indian or
Alaska Native entity or a tribally-approved or American Indian or Alaska Native-operated facility, in
                                     lv
that order, absent good cause; and requires the cultural and social standards of the American
                                                                                                       lvi
Indian or Alaska Native community to be applied in meeting the placement preferences.
           The act also requires active efforts to provide remedial and rehabilitative services before
                                                                                              lvii
a child may be removed from his or her family (except in emergency situations),                      provides
                                                          lviii
procedures governing voluntary relinquishments,                   provides tribes and adoptees with access to
                             lix                                                             lx
certain state records, and authorizes tribal-state agreements on child welfare.                   The sections of
ICWA directly relevant to jurisdictional issues are summarized in more detail below.
           It should also be noted that a number of states have enacted state Indian Child Welfare
Acts. These laws tend to (1) reiterate the federal act, (2) clarify how parts of the federal law
should be implemented, and, (3) in some cases, expand upon the federal act.
           For example, in addition to sections restating ICWA, the Oklahoma Indian Child Welfare
   lxi
Act clarifies that the existing American Indian family exception does not apply in that state (see
discussion below), adopts Bureau of Indian Affairs (BIA) guidelines on the circumstances in which
a court shall be considered to have knowledge that an American Indian child is before the court,
specifies the content of notices and orders, instructs the court as to how to balance parental
requests for anonymity with the application of the placement preferences, sets time limits on
emergency placements, and authorizes tribal-state agreements on foster care funding.
                                                lxii
           The Iowa Indian Child Welfare Act,          among other things, includes provisions defining
best interests of the child to include the maintenance of a political, cultural, and social relationship
with the American Indian child‘s tribe and tribal community, covers all children identified by an
American Indian tribe as a member of the community; includes clan and band members as
extended family; provides tribal notice in voluntary proceedings, defines the meaning of good
cause not to transfer a case to tribal court; provides extended family members with the right to
intervene in adoption proceedings; and defines the meaning of active efforts and expert
R13227-0                                                261
witnesses and allows a court to vacate a decision if it fails to comply with the placement
preferences. A full analysis of state Indian Child Welfare Acts is beyond the scope of this chapter.


Indian Child Protection and Family Violence Prevention Act
                                                                                                               lxiii
            The Indian Child Protection and Family Violence Prevention Act,                                            among other things,
requires coordination between local law enforcement and child protective services agencies
whenever a report of the abuse or neglect or potential abuse or neglect of a child in Indian
                                   lxiv
Country is received;                      preparation of a study regarding the feasibility of and need for a central
            lxv
registry;         waiver of parental consent to child examinations and interviews in cases where there is
                                                                                  lxvi
reason to believe that a child has been abused;                                          and character investigations and criminal
background checks of all federal employees and tribal employees who are funded through Public
Law 93-638 and who are employed in a position that involves regular contact with or control over
                           lxvii
Indian children.
            The act also creates Indian Child Resource and Family Service Centers that are staffed
by multidisciplinary teams with experience in ―prevention, identification, investigation and
                                                               lxviii
treatment‖ of child abuse and neglect.                                   American Indian/Alaska Native tribes may contract to
                                                                lxix
run these centers pursuant to contract.
            Problems have arisen in the implementation of the act, most notably due to the absence
of funding for implementing its provisions and the need for better coordination of services and
information between the BIA, Indian Health Service (IHS), Federal Bureau of Investigation (FBI)
and U.S. Attorney‘s Office, among others.


Social Security Act: Titles IV-B and IV-E
            The basic generic federal child welfare statute is the Social Security Act, specifically
                                                      lxx
Titles IV-B and IV-E of that act.                           Title IV-B and IV-E ―are intended to operate in consort to help
prevent the need for out-of-home placement of children, and in such cases where such
placement is necessary, to provide protections and permanent placement for the children
involved.‖ (House Ways and Means Committee, 1998).
            Title IV-B includes two child welfare grant programs for states. Title IV-B, subpart 1 is a
federally funded formula grant program that provides states with federal support for a wide variety
of family and children services, including pre-placement preventive services to strengthen families
and avoid placement of children, services to prevent abuse and neglect, and services related to
                                                                        lxxi
the provision of foster care and adoption.                                     Tribes are eligible for direct funding under Title IV-B,
                  lxxii
subpart 1.                However, the majority of tribes are only eligible for extremely small grants, less than
$10,000 in most cases (National Indian Child Welfare Association [NICWA], 2004).
            Title IV-B, Part 2, also known as the Promoting Safe and Stable Families program, funds
programs to prevent the removal of children from their homes, reunify children with their families
when possible after removal, and provide services to support adoption when it is not possible for
                                           lxxiii                                                                                       lxxiv
the child to return home.                           Although some tribes are also eligible for funding under this part,
R13227-0                                                                         262
tribal funding allotments are generally so small that tribes must combine them with other sources
of funding to provide services (Brown & Limb, 2003). Moreover, because of eligibility restrictions,
these grants are currently available to only 63 tribal governments (NICWA, 2004).
           The Title IV-E Foster Care and Adoption Assistance program provides federal money for
                                                                                                       lxxv
foster care and adoption assistance to states on an entitlement basis.                                        Tribes are not eligible
for direct funding under Title IV-E.
           In order to become eligible for funding under these titles, states (and tribes where they
are eligible) must develop plans for family and children‘s services that meet various requirements
in the applicable federal statutes. Title IV-B and Title IV-E are, in fact, the bases for many of the
basic statutory requirements found in state child welfare systems, including case plans providing
for children in foster care to be placed in the least restrictive setting that is in close proximity to
                                             lxxvi
the home of the child‘s parents,                     case review systems providing for court or administrative
                                                                           lxxvii
review of each child at least once every six months,                                and reasonable efforts to prevent removal
                                                                                                                                  lxxviii
of children from their families and to facilitate the return of children who have been removed.
Recent amendments to these titles, in a law popularly known as the Adoption and Safe Families
                 lxxix
Act (ASFA),              have emphasized that health and safety of children must be the paramount
                                                      lxxx
concern in all child welfare decisions                       and encouraged expedited permanent placements by,
among other things, requiring permanency planning hearings within 12 months of an initial foster
                         lxxxi
care placement;                  eliminating the reasonable efforts requirement in certain egregious
              lxxxii                                                                  lxxxiii
situations;            encouraging the use of concurrent planning;                              providing incentives for
            lxxxiv
adoption;              and mandating that termination of parental rights petitions be filed when a child has
been in foster care for 15 of the last 22 months unless the child is being cared for by a relative,
the state agency has documented that there are compelling reasons for determining that the
                                                                                                                                     lxxxv
petition is not in the child‘s best interest, or adequate services were not provided to the family.
           The Adoption and Safe Families Act should not be viewed as affecting the application of
the Indian Child Welfare Act. There are several reasons why this conclusion is inescapable.
First, key provisions of Titles IV-B and IV-E, the titles amended by ASFA, were enacted in 1980
after ICWA was enacted, but these 1980 amendments have never been interpreted to amend or
affect the application of ICWA. Moreover, it is a standard rule of statutory construction that
general enactments, like ASFA, do not amend specific statutes, like ICWA, unless there an
explicitly expressed Congressional intent to do so. In addition, while the philosophical bases for
ASFA and ICWA are somewhat different, their provisions are capable of being successfully
integrated without violating either statute (Simmons & Trope, 1999).
           There are a few specific provisions in Titles IV-B and IV-E that are of special interest in
terms of the application of these laws to American Indian/Alaska Native children. First, as part of
its IV-B state plan, a state must include a description, developed in consultation with tribes, as to
                                                        lxxxvi
how it plans to comply with the ICWA.                            Currently, this is the only monitoring tool available to
the federal government to examine ICWA compliance.

R13227-0                                                             263
           Secondly, Title IV-E includes a provision prohibiting any person or government that is
involved in adoption or foster care placements from ―delay(ing) or deny(ing) the placement of a
child for adoption or into foster care, on the basis of the race, color, or national origin of the
                                                      lxxxvii
adoptive or foster parent, or the child, involved.‖               This was enacted as part of a law
                                                                        lxxxviii
commonly known as the Multiethnic Placement Act (MEPA).                            There is a specific exception for
placements made pursuant to the ICWA, however, because ICWA is based upon the political
                                                                                                             lxxxix
status of American Indian/Alaska Native children and families and not upon their race.                                Of
note, the same law that added this section also added a requirement that state plans ―provide for
the diligent recruitment of potential foster and adoptive families that reflect the ethnic and racial
                                                                                                    xc
diversity of children in the State for whom foster and adoptive homes are needed.‖
           Finally, there is a similar provision in Title IV-E that provides that states may not deny or
delay placement of a child for adoption when an approved family is available outside of the
                                                            xci
jurisdiction with responsibility for handling the case.           This section does not address the
application of the ICWA; nonetheless, delays necessary to meet the requirements of ICWA—
such as the placement preferences or the transfer of jurisdiction section—should not be
considered a violation of this section. Moreover, it is worth noting that placements outside of the
jurisdiction of the state would presumably include placements within tribal jurisdiction: ―Thus, if
the child‘s tribe has identified and approved a preferred adoptive placement, ASFA would seem
to prohibit a state placement agency from delaying or denying the child‘s placement in that home‖
(Simmons & Trope, 1999).


Child Abuse Protection and Treatment Act
           The other key federal law that is relevant to the issues covered by this study is the Child
                                                    xcii
Abuse Protection and Treatment Act (CAPTA).                As a result of this act, all states have legislation
requiring citizens and specified professionals to report suspected child abuse and neglect to a
designated public agency. The Child Abuse Protection and Treatment Act, as amended, also
                                                                                                     xciii
created a national data collection and analysis program on child abuse and neglect                           and a grant
                                                                                                    xciv
program for states for child abuse and neglect prevention and treatment programs.                             For the
most part, tribes have been left out of CAPTA.


Major Crimes Act, Indian Country Crimes Act, and P.L. 280
           As described earlier, these laws allow for the prosecution of certain types of criminal
abuse and neglect in federal or state court.




Tribal Courts
R13227-0                                            264
History
           Tribes have always had systems for addressing their internal conflicts and relationships.
Historically, these systems were informal, unwritten, and based upon a holistic philosophy and a
way of life (Melton, 1995).
           Although a few tribes continue to operate such systems exclusively, most notably some
of the pueblos in New Mexico, the vast majority of tribal court justice systems today operate
pursuant to written codes and procedures and resemble, in many respects, their federal and state
                                                                         th
counterparts (Jones, 2000). This transformation began in the 19 century. The first written
codes and courts based upon, at least in part, a Western model were developed by the so-called
Five Civilized Tribes—the Cherokee, Choctaw, Chickasaw, Creek and Seminole—who had been
                                           th                                                   th
removed to Oklahoma in the mid-19 Century (Deloria & Lytle, 1984). As of the late 19 Century,
however, these Western-style tribal courts were the exceptions to the rule and these particular
courts were forcibly disbanded in 1898 (see below).
           The catalyst for the broader development of Western-based judicial systems in most of
                                                                xcv
Indian Country was the 1885 case of Ex Parte Crow Dog.                In that case, a federal court had
sentenced Crow Dog to death for the murder of another American Indian person, Spotted Tail.
The United States Supreme Court ruled that the lower court had no authority to do so and that
                                                                                                               xcvi
such crimes were ―left to be dealt with by each tribe for itself, according to its local customs.‖
In response, the United States passed the Major Crimes Act, described earlier, so that the federal
government could invoke jurisdiction over such crimes. It also established Courts of Indian
Offenses to handle less serious crimes and disputes between tribal members. The establishment
of these courts was seen as a step toward the assimilation of Indian people and the diminution of
tribal sovereignty (Jones, 2000).
           At about the same time, Congress passed the General Allotment Act (also known as the
Dawes Act), which authorized the government to divide tribal lands into separate parcels
(allotments) to be given to tribal members, with the remaining ―surplus‖ lands opened up for non-
                     xcvii
Indian settlement.           The goals of the Dawes Act were to ―extinguish tribal sovereignty, erase
                                                                                               xcviii
reservation boundaries, and force the assimilation of Indians into the society at large.‖
                                                                                                        xcix
           This was the status quo until the 1930s when the Indian Reorganization Act (IRA)                    was
enacted. The IRA reversed the disastrous policies established by the Dawes Act and, in
essence, re-recognized tribal governments. Pursuant to federal regulations adopted following
enactment of the IRA, tribal councils were created and many tribes enacted tribal codes and
established tribal courts. These actions facilitated the exercise of tribal sovereign authority,
authority that had been atrophying under the previous assimilation policy. The IRA has been
criticized as flawed, however, as many of the governmental structures formed pursuant to the IRA
were not consistent with extant traditional forms of government more closely attuned to tribal
cultural norms (Deloria & Lytle, 1984).
           In the 1950s, the federal government once again reversed its course and embarked upon
what has been known as the ―termination‖ era. One hundred and nine tribes were ―ordered to
R13227-0                                              265
cease exercising governmental powers and to disperse all land and property to tribal members.‖
(Pevar, 2002) In addition, as previously noted, P.L. 280 was enacted as an interim step toward
termination for tribes in a number of states by granting those states significant jurisdiction over
American Indians in Indian Country. Indeed, federal bureaucrats used P.L. 280 as an excuse to
―redirect‖ federal support away from tribes in P.L. 280 states toward tribes in non-Public Law 280
states (Goldberg & Champagne, 1996). Although many of the terminated tribes have had federal
                                                     c
recognition of their governmental status restored and P.L. 280 has been largely interpreted as
not having deprived tribes of concurrent jurisdiction over their members and territory, these laws
nonetheless slowed the development of the judicial and governmental systems of a number of the
affected tribes, and, in some cases, tribes even disbanded their court systems because they
believed that their jurisdiction had been preempted (Jones, 1995).
           Finally, beginning in the late 1960s and 1970s and continuing until the present, Congress
and the Executive Branch again reversed course and embraced tribal sovereignty. Congress
passed such laws as the ICWA (see above), the Indian Self-Determination and Education
Assistance Act of 1975 (Public Law 93-638) which authorizes tribes to contract with the federal
                                                                                            ci
government to run certain programs previously operated by the federal government, and the
Indian Tribal Self-Governance Act which transfers to participating tribes the control of, funding for,
and decision making concerning a number of federal Indian programs, services, functions and
            cii                                                 ciii
activities, particularly those authorized by the Snyder Act.           The Snyder Act is the organic
statute authorizing funding for BIA programs. The increase in tribal governmental activities and
responsibilities pursuant to these statutes has provided an impetus for the expansion of tribal
courts over the last three decades.
           In considering the current status of tribal courts, the unique history of Native peoples in
California, Alaska, and Oklahoma should also be noted. In the case of California, almost
immediately coincident with its acquisition by the United States, more than 100,000 people
immigrated into California in the California Gold Rush. Statutes were enacted that allowed
American Indians to be sold into virtual slavery, and significant numbers of California Indians
were enslaved or murdered. In 1852, the United States negotiated 18 treaties with California
tribes, but because of pressure from California‘s senators, the treaties were never approved and,
in fact, the very existence of the treaties was kept secret by the Congress for 50 years. During
      th
the 19 century only a few reservations were established; most California Indians were landless.
                            th
In the early part of the 20 century, 36 reservations and rancherias were established in 16
Northern California counties. Rancherias were very small parcels of land aimed at providing
home sites for small bands of landless Indians. Unfortunately, in 12 other Northern California
counties, no home sites were purchased. Between 1933 and 1941, Congress authorized the
enlargement of several Southern California reservations. However, no rancherias or home sites
were created in Southern California for landless Indians there (Castillo, 1998; National Park
Service, 2004).

R13227-0                                           266
           Because of this history, ―the clan, family and religious institutions that had supported
tribal authority systems‖ were greatly weakened and, for some California tribes, those systems
virtually ceased to function. To a significant extent, California tribes had ―been broken up into
such small and heterogeneous groups that forming effective justice systems [was] usually
unfeasible at the tribal level.‖ This problem was exacerbated by the enactment of P.L. 280.
Because of P.L. 280, federal funding provided for the development of tribal government and
judicial systems beginning in the 1960s and 1970s was never provided to California. Thus, it is
only recently that some California tribes have begun to develop judicial systems (Goldberg &
Champagne, 1996).
           Alaska is also a unique situation. For decades after the purchase of Alaska, the Native
peoples who resided in approximately 200 mostly remote and small villages were left largely
                                                                                                    th
undisturbed (Pevar, 2002). About 150 were recognized as reservations in the late 19 and early
  th
20 centuries and traditional forms of governance remained intact (Jaeger, 2002). In 1971,
Congress transferred almost all of the village and reservation land (and other land as well totaling
40 million acres) to Alaska Native corporations established by the Alaska Native Claims
                                                                                                                 civ
Settlement Act (ANCSA) as part of a comprehensive settlement of Alaska Native land claims.
                                                                                                         cv
The Alaska Native Claims Settlement Act land has been held not to be Indian Country.                          Thus,
although there are some circumstances where land is held in trust for Native individuals within the
conventional meaning of Indian Country and there is still one reservation in Alaska, the amount of
land classified as Indian Country in Alaska is very limited.
           Because of this history, Alaska‘s state officials have opposed the exercise of sovereignty
by Alaska Native villages for most of the period since statehood (Jaeger, 2002). Nonetheless,
although they have faced much opposition from state officials, Native village governments in
Alaska have continued to operate, and, in recent years, their ability to exercise their sovereignty
                                                                cvi
over their members has been increasingly recognized.                  Child adoption, custody, and protection
cases are routinely part of the jurisdiction that has been exercised by Alaska Native villages, and,
indeed, traditional child adoption—usually an open adoption in form—has been practiced for
centuries.
           In the case of Oklahoma, in 1898, Congress abolished the tribal courts of the Cherokee,
                                                                              cvii
Choctaw, Chickasaw, Creek and Seminole tribes in the Curtis Act.                     It also opened up vast
areas of land for non-Indian settlement. Many tribes lost their reservations and were left with only
scattered parcels of land (Pevar, 2002). Finally, in 1936, Congress restored the right of
                                              cviii
Oklahoma tribes to establish tribal courts.           Although federal officials actively discouraged the
                                                  cix
exercise of this authority for many decades,            it is now clear that Oklahoma tribes exercise
sovereignty similar to that of other tribes, although their land base has been significantly
              cx
diminished.


Contemporary Tribal Courts

R13227-0                                                267
           Today, ―[t]ribal courts play a vital role in tribal self-government and the Federal
                                                                           cxi
government has consistently encouraged their development.‖                       Congress has enacted the Indian
                                                                                                              cxii
Tribal Justice Act which authorized funding for tribal courts and tribal judicial conferences,
                                                                                                                     cxiii
recognized inherent tribal sovereignty and the right of tribes to choose their own court systems,
                                                                    cxiv
and created an Office of Tribal Justice Support in the BIA.
           Information about tribal courts is not as readily available as is the case for other court
systems. There is no formal place where detailed information about such courts is compiled.
There have been efforts by organizations such as the Tribal Law and Policy Institute, National
Indian Law Library, and National American Indian Court Judges Association, sometimes assisted
by the federal government, to develop databases about tribal codes and tribal courts. It is largely
from these sources that the information in this chapter is derived. However, these databases are
works in progress and admittedly incomplete. Moreover, it is worth noting that there are 563
tribes, each of which has the authority to operate its own system.
           Nonetheless, there is enough information available to provide an overview sufficient for
the purposes of this report and also enough examples of tribal codes and court procedures
pertaining to child welfare issues to allow a number of useful observations to be made.
Excluding tribes in California, almost every tribe in the lower 48 has established some kind of
tribal judicial system, although the scope of some tribal systems is limited, particularly in P.L. 280
states (Jones, 2000). There are approximately 200 tribes that have or are part of tribal court
systems in these 47 states. As late as the mid-1990s, however, only 2 of the more than 100
recognized tribes in California had tribal courts (Goldberg & Champagne, 1996). In recent years,
this has rapidly begun to change, and court systems, in some cases, multi-tribal, are currently
being developed in California for a number of tribes. In Alaska, most Native villages have
                                                                    cxv
established mechanisms for judicial-type decision-making.
           In addition, there are approximately 20 Code of Federal Regulations (CFR) courts
(Jones, 2000). These are courts established by the federal government that perform the function
that a tribal court would fulfill. Tribes may enact their own tribal codes to be utilized by the CFR
                                                                                      cxvi
court, subject to approval by the Assistant Secretary of Indian Affairs.                     Tribes may opt out of the
                                                     cxvii
system by establishing their own court system                and must approve the appointment of CFR
          cxviii
judges.            If the tribe has not enacted its own code, then the CFR court operates pursuant to
federal regulations promulgated by the BIA.
           Tribal courts have a variety of forms. Indeed, the federal government understands this.
The definition of ―tribal court‖ in ICWA is deliberately broad: ―a Court of Indian Offenses, a court
established under the code or custom of an Indian tribe, or any other administrative body of a
                                                                                    cxix
tribe which is vested with authority over child custody proceedings.‖
           There are a handful of courts that are almost exclusively traditional in nature, for
example, a few of the Pueblos in New Mexico and the Emmonak Village Elders Court in Alaska
(Vicenti, 1995; Jaeger, 2002). There are also those tribes that do not have a judicial system per
se, but which make child welfare decisions through a different mechanism, such as a tribal
R13227-0                                              268
council. This is particularly true in Alaska where tribal councils often function as tribal courts,
particularly in very small villages, with the village chief or president acting as the presiding judge.
In some cases, elders are added to the judicial panel (Jaeger, 2002). On the other extreme,
there are court systems that are modeled almost entirely upon the Euro-American model of
                 cxx
jurisprudence.
           The most common systems are hybrid systems, which are based largely upon the
American model but which try in different ways to incorporate tribal laws, customs, and mores. In
some cases, these systems may operate side-by-side with more traditional forms of dispute
resolution. As Carey Vicenti has stated, ―On the one hand, many tribal populations insist on
importing and advancing traditional cultural values into the process of adjudication and urging a
greater degree of flexibility and informality within court procedure. But many people are also
taken by the allure of civil rights and legal process‖ (Vicenti, 1995; see also Sekaquaptewa, 2000
and Cruz, 2001).
           Tribal codes cover a range of subjects, including, but not limited to, membership, health
and safety issues, family law, land use, conservation and environmental protection, hunting and
                                                                                   cxxi
fishing, commercial codes, education, health care, and housing.                           While many tribes have
lengthy tribal codes with detailed procedures, others have only a few ordinances, and some
function solely based upon unwritten tribal law (Jaeger, 2002).
           In general, it should be emphasized that most tribal courts operate in a manner that is
similar in most respects to non-tribal justice systems. Thus, in the child welfare context, codes
governing these courts routinely provide for emergency removals, preliminary hearings,
                                                                  cxxii
adjudicatory, dispositional and/or permanency hearings.                   Guardian ad litems and Court
                                                                          cxxiii
Appointed Special Advocates (CASAs) are often appointed.                           Witnesses are called, and legal
findings are made, although unlike non-Indian judges, tribal judges do not always have a legal
degree (Jones, 2000). Many tribes have established family or juvenile courts specifically to hear
               cxxiv
these cases.           Codes typically set out standards for determining whether a child has been
subjected to abuse or neglect, whether the child can stay with his or her parents or if removal
from the home is necessary, what placements are preferred, and, as a last resort, whether
                                                                                                         cxxv
parental rights should be terminated and what standards of proof should be applied.                             Many
tribal systems have Indian child welfare (ICW) workers, probation officers, community review
boards, tribal prosecutors and law enforcement personnel, and other categories of people similar
                                         cxxvi
to those involved in state systems.              In a few cases, there are codes dealing with criminal
                cxxvii
sexual abuse,            as well as specific standards to determine when state and other tribal court
                                                       cxxviii
decisions should be recognized and honored.
           Yet, it must also be emphasized that there are numerous ways in which tribal court
systems try to incorporate tribal culture. One of the most ubiquitous elements found in tribal
codes are alternative dispute resolution provisions. In most cases, these informal mechanisms
operate within the basic structure of the tribal legal system, much as alternative dispute resolution
provisions increasingly found in non-Indian courts. These provisions typically provide for informal
R13227-0                                                 269
conferences with the family and tribal employees and/or community members who seek to
develop a plan to remediate the problem and obviate the need for court action. Many tribes also
have mechanisms for developing plans, such as a consent decree with the family or something
                                                     cxxix
similar, after a petition has been filed.
In some cases, these dispute resolution systems may operate as an alternative to the regular
                         cxxx
tribal court system.            The Navajo peacemaker court is perhaps the best known of these
systems. In that system, the peacemakers are community members who are leaders in the
community because they are respected and not because they hold a position of power or
authority. The participants in the process not only include the individuals whose actions have
given rise to a need for intervention but also the individuals‘ extended families and clan members.
The participants talk out the problem with the goal of reconciliation. The peacemakers are not
neutral; they state their opinions and serve as tradition-based teachers. The goal of the process
is to reach consensus on a plan of action. If that does not happen, the case may be sent back to
the ―conventional‖ tribal court system (Zion, 1998). Another example can be found on the Hopi
Reservation where traditional village governments have the authority to deal with family disputes
                                                 cxxxi
as an alternative to the tribal court.                   Many believe that the prevalence of these more informal,
communal mechanisms is a reflection of a continuing tribal worldview emphasizing holistic
solutions rather than the adversarial, and often punitive, processes incorporated in the Western
                                                   cxxxii
legal system (Sekaquaptewa, 2000).
           More typically, tribes attempt to incorporate tribal customs and culture into the
deliberations and decisions of a Western-style tribal court system, often through the development
of tribal common law (Sekaquaptewa, 2000) or provisions in tribal codes. As to the latter, many
tribal codes recognize the rights of extended family, grandparents, and traditional custodians to
continued visitation, even where parental rights have been terminated, as well as their right to
                                                   cxxxiii
participate in the judicial proceeding.                      Extended family is defined in many codes to include a
large number of people beyond those typically included in non-Indian definitions. These may
                                                                       cxxxiv
include people such as clan and band members,                                   individuals who traditionally assist with
             cxxxv                                                                          cxxxvi
parenting,           any person viewed by the family as a relative,                                  first cousins of parents (defined
                            cxxxvii                                              cxxxviii
as aunts and uncles),                 step-family, and godparents.                           Terms such as ―grandparents‖ may
                                                                                              cxxxix
include brothers and sisters of the child‘s lineal grandparents.                                       One particularly broad
definition notes that ―there are formal and informal ties, which bind the community . . . based upon
bloodlines, marriage, friendship and caring. All women in the community become ‗auntie‘ or
‗grandma‘ when they become a certain age, regardless of blood relationship . . . any member of
the Skokomish Indian Tribe community who is reliable, responsible, loving and willing to care for
                                                                cxl
a youth may be considered extended family.‖
           Some tribes specifically prefer guardianship to adoption or open adoptions to closed
adoptions or discourage termination of parental rights except in extreme circumstances, based
upon a belief that it is seldom in a child‘s best interest to completely sever ties with natural
                                        cxli
parents and extended family.                   In some cases, under codes ―terminated‖ natural parents have
R13227-0                                                              270
                                                                          cxlii
responsibilities to provide continued financial support for the child.            Some codes have ―best
interests‖ definitions that specifically tie best interests to the child‘s relationship with the tribe,
                                 cxliii
culture, and extended family,             and many codes specifically recognize the relevance, or even the
                                                                                  cxliv
controlling nature of, tribal laws and customs in interpreting the codes.
           Of course, given the diversity of tribes and tribal codes, it is difficult to generalize. For
example, it is certainly true that a number of tribes have fairly conventional termination of parental
rights and adoption provisions that essentially sever the connection between a child and natural
                                                                                             cxlv
parents upon termination and replace it with the adoptive parent-child relationship.                These
different codes are reflective of the variances between tribes, their different cultures, and the
extent to which they have adopted Western ideas about child welfare.


Jurisdictional Issues
           There are several ways in which jurisdictional issues affect the treatment of child abuse
and neglect of American Indian/Alaska Native children. The key issues are as follows: (1) When
does a tribe have exclusive jurisdiction over child welfare matters? (2) When do states and tribes
share jurisdiction over such cases and how are such cases allocated between the two
sovereigns? (3) In exercising its sovereignty, when and how must state courts defer to tribal
courts or standards? (4) What is the nature of cross-jurisdictional cooperation, both between
states and tribes on child welfare and between the federal government, states, and tribes in
criminal cases? and (5) What funding issues that affect the availability of services to American
Indian/Alaska Native children and families arise from the multiple jurisdictions that are involved?
           In order to answer questions about jurisdiction, reference must be made to the principles
of inherent tribal sovereignty and the statutory framework previously described. Many, although
not all, of the issues that are relevant arise from interpretations of ICWA. The Indian Child
Welfare Act‘s jurisdictional provisions are not new; justification for much of ICWA‘s scheme can
                               cxlvi
be found in preexisting law.              However, ICWA has a number of provisions, procedures, and
definitions that have given rise to a significant amount of litigation.




Exclusive Jurisdiction
           As previously noted, it is long-standing law that tribal courts have the inherent right to
exercise jurisdiction over children who are tribal members resident and domiciled on the
reservation based upon their inherent sovereignty, a right explicitly recognized by ICWA.
Domicile is an individual‘s permanent home, the place to which an individual intends to return,
                                                                                                cxlvii
notwithstanding temporary absences. A child‘s domicile is that of his or her parents.                    It is also
incontrovertible that ICWA has clarified that tribes have the same right to exercise jurisdiction
over all American Indian/Alaska Native children within their reservation as defined in the act; this
includes children who are members of American Indian or Alaska Native tribes or who are eligible
R13227-0                                                271
                                                       cxlviii
for membership and a child of a member.                          More than likely, tribes have the same right under
                              cxlix
their inherent sovereignty.           The term ―reservation‖ is broadly defined in ICWA to include both
Indian Country, as defined in the criminal statutes referred to above, and all individual and tribal
                                                  cl
land held in trust by the United States.               The Indian Child Welfare Act also recognizes exclusive
tribal jurisdiction over American Indian/Alaska Native children residing and domiciled off of the
                                                                 cli
reservation if they are wards of the tribal court.
           Issues that arise concerning a tribe‘s exclusive jurisdiction involve the following: (1) the
impact of Public Law 280; (2) the definition of ―domicile‖; (3) to what extent tribes may exercise
jurisdiction over children who are not eligible for tribal membership in a federally recognized
Indian tribe; and (4) to what extent tribes can obtain exclusive jurisdiction over non-resident/non-
domiciliary tribal children by reaching out and declaring such children to be wards of the tribal
court.
                                                                              clii
           As mentioned earlier, P. L. 280 and similar laws                          have limited tribal exclusive jurisdiction
by recognizing state jurisdiction over ―civil causes of action.‖ The United States Supreme Court
has interpreted this phrase as providing states with adjudicatory power over private civil litigation
involving American Indians but has not interpreted P.L. 280 to allow for the exercise of general
                                                                                                  cliii
state civil regulatory authority over activities taking place on tribal land.                             Applying this principle
in the context of child welfare would suggest that P. L. 280 states have the right to adjudicate
cases voluntarily brought to the state court but that the state would not have the authority to
impose its civil/regulatory child welfare statute in an involuntary context. Nonetheless, some P.L.
280 states have exercised jurisdiction over child welfare matters arising on Indian reservations
based upon a different interpretation of the scope of P.L. 280 (Jones, 1995), and there has been
                                        cliv
litigation surrounding this issue.             Thus, the issue of the scope of state authority—or to put it
another way, whether tribal jurisdiction over reservation child custody proceedings is exclusive in
P.L. 280 states – is still not definitively resolved.
           Another issue that arises in the context of determining whether a tribe has exclusive
jurisdiction involves the definition of ―domicile.‖ The Supreme Court in Holyfield held that
―domicile‖ is defined by federal common law. A child‘s domicile follows that of the parents, except
                                                                                                                       clv
in the case of a child born out of wedlock who follows the domicile of the mother.                                           A number of
tribes have defined ―domicile expansively‖; for example, some have created a presumption in
favor of reservation domicile in the absence of factors clearly showing an intent to have a
                                        clvi
permanent home off reservation                 or providing in their codes that an intent to establish a
                                                                                                     clvii
permanent home on the reservation is sufficient for a finding of domicile.                                   Whether non-tribal
courts will accept these definitions is, as yet, unclear.
           A number of tribal courts have also asserted jurisdiction over children who do not fall
                                                                                                             clviii
within the definition of ―Indian child‖ in ICWA (e.g., Canadian Indian children                                       or children
                                                                 clix
recognized as Indian by the tribal community).                          Given the strong tribal interest in and history of
regulating domestic relations of Indian families resident or domiciled within the tribal community,
these jurisdictional assertions would seem to be legitimate, particularly where the child has a
R13227-0                                                          272
close connection to individuals (e.g., tribal members) clearly subject to the tribe‘s sovereign
           clx
powers.           However, there are no definitive Supreme Court decisions on this issue.
            Finally, in some cases, tribal courts have, on their own initiative, commenced child
custody proceedings for off-reservation tribal children and made such children wards of the tribal
court, thereby placing them under the tribe‘s exclusive jurisdiction recognized by ICWA. The
authority of tribes to proactively exercise their concurrent jurisdiction over children outside of
                                                                                                                       clxi
Indian Country has been recognized in some cases, most notably in Alaska.                                                     Other state courts,
however, have questioned whether tribal courts have the authority to proactively assert
                                                                                       clxii
jurisdiction over off-reservation children in that manner.


            Concurrent jurisdiction between tribes and states.
            The Indian Child Welfare Act recognizes that tribes have concurrent jurisdiction over their
                                            clxiii
children wherever located.                           The Supreme Court has characterized this as presumptive tribal
                  clxiv
jurisdiction.             This is achieved through a provision in ICWA that provides for transfer of cases
from state court to tribal court, if requested by the parent, Indian custodian, or tribe, absent
                                                                             clxv
parental objection or good cause to the contrary.
            Disputes between the two concurrent jurisdiction sovereigns occur in two basic ways.
First, there are differences concerning when ICWA (and hence its transfer provision) applies.
The generally accepted rule is that ICWA applies to American Indian/Alaska Native children who
                                                                    clxvi
are the subject of child custody proceedings.                                    The definition of ―Indian child‖ includes
unmarried children under 18 who are members of tribes or individuals who are eligible for
                                                                        clxvii
membership and the child of a tribal member.                                      Tribal determinations of membership are
                                                                                                                   clxviii
determinative, and courts will generally not second-guess such decisions.                                                     ―Child custody
proceeding‖ is defined to include foster care, adoptive and pre-adoptive placements, and
                                                                clxix
termination of parental rights proceedings.
            A minority of state courts, however, have judicially created an ―existing Indian family
exception‖ to the application of ICWA, even though no such exception appears in the legislative
           clxx
history.          In its most common form, this has been interpreted to mean that when a child has
                                                                                                        clxxi
never lived with an Indian parent or family, the act does not apply.                                            Courts in one judicial
district in Southern California, however, have developed a test for the application of ICWA based
upon the degree of the child‘s contact with American Indian or Alaska Native culture, which they
                                                                                               clxxii
have posited as necessary to uphold ICWA‘s constitutionality.                                           Other courts in California have
                             clxxiii
rejected this test,                    and courts elsewhere have expressly rejected the constitutional analysis in
                    clxxiv
these cases.                 The existing American Indian or Alaska Native family doctrine would seem to be
inconsistent with the Supreme Court‘s decision in Holyfield since the children in that case had
never lived in an Indian family and, in fact, the South Dakota Supreme Court reversed an earlier
                                                                                                                                   clxxv
decision applying the existing Indian family doctrine following the Holyfield decision.
                                                                                                                                     clxxvi
Nonetheless, as noted, some state courts have adopted the exception post-Holyfield.

R13227-0                                                                  273
           Secondly, there are disputes about what constitutes good cause for a state court to
decline a motion to transfer a proceeding to tribal court. The legislative history indicates that
good cause is meant to refer to a modified forum non conveniens test, which basically means that
it would not be convenient or feasible for the litigants and witnesses to be heard in the tribal
      clxxvii
court.          The BIA guidelines, which are advisory and not binding, indicate that good cause may
also be present when the request is made at an advanced stage; the child is over 12 and objects;
                                                                                                                        clxxviii
or the child is over 5, has had little contact with the tribe, and the parents are not available.
Some courts have taken a more expansive view of good cause to include ―best interests of the
                                                                                                      clxxix
child‖ as a reason for refusing transfer, while other courts have rejected this idea.                          Utilizing
good cause to refuse transfer to a tribal court based upon the best interests of the child would
seem inappropriate because it suggests that the state court is somehow better able to determine
best interests than the tribal court, a presumption that ICWA clearly does not authorize a state
court to make.


           State deference to tribal courts and standards.
                                                                                                                clxxx
           ICWA requires that state courts give full faith and credit to official acts of tribes.                        This
means both court orders and tribal codes, although full faith and credit principles provide states
with more leeway in the case of codes, as opposed to court orders. Court orders should be
enforceable in state court if the tribal court properly had jurisdiction. As noted, however, there
have been disputes about tribes seeking to assert exclusive jurisdiction over off-reservation
            clxxxi
children.            Moreover, state courts have sometimes been reticent to enforce tribal legislative
                                                                                                  clxxxii
enactments if they are inconsistent with the public policy of the enforcing state.
           A second area where deference by states to tribal laws and standards should take place
is in the context of ICWA compliance. The Indian Child Welfare Act provides that the terms
―extended family members‖ and ―Indian custodian‖ are to be defined by tribal law and
          clxxxiii                                            clxxxiv
custom;              recognizes tribal customary adoptions;             requires state courts and agencies to
follow tribal placement preferences established by tribal resolution (provided it is the least
                                                                                                                 clxxxv
restrictive alternative and taking into account, where appropriate, parental preferences);                                 and
requires that the placement preferences be applied based upon ―prevailing social and cultural
standards of the Indian community in which the parent or extended family resides or with which
                                                                                        clxxxvi
the parent or extended family members maintain social and cultural ties.‖
           A number of tribes have availed themselves of the opportunity to define tribal law and
custom and enacted different placement preferences, and definitions of ―extended family‖ and
―Indian custodian.‖ The varying definitions of ―extended family‖ have already been discussed
earlier in this chapter. In terms of the Indian custodian definition, a number of tribes have
included all relatives of the child other than the parents who, pursuant to tradition and custom,
have the rights, duties, and responsibilities of assisting the parents in rearing the child and
                                    clxxxvii
providing for his/her support.

R13227-0                                               274
           There are a number of variations on placement preferences among tribes, although most
of them do reflect ICWA preferences with only modest changes. For example, a number of tribes
adopt ICWA adoption preferences but add a fourth category covering other persons who are
                                                                         clxxxviii
familiar with the child‘s tribal affiliation and special needs.                      A number of tribes have a strong
preference for on (or sometimes near) reservation placements, treating off reservation
                                 clxxxix                                                              cxc
placements as disfavored.                  A few tribes favor tribal extended family members                or tribal
                        cxci                                                                                   cxcii
members in general.            Others provide some preference to parental recommendations                              or to
                                                        cxciii
any individual with a pre-existing relationship.
           Yet, it is unclear how many state courts and agencies are utilizing those definitions in
their child custody proceedings and decisions, and whether state courts are even aware of these
tribal definitions.


Cross-Jurisdictional Cooperation
           An important way in which tribal-state jurisdictional disputes are resolved is through tribal-
state agreements. As previously noted, in the area of criminal abuse, the tribe, pursuant to its
inherent authority and subject to Indian Civil Rights Act limitations, has the authority to prosecute
criminal abuse by American Indians or Alaska Natives on the reservation. The federal
government has the authority to prosecute murder, manslaughter, kidnapping, rape, incest,
sexual abuse of a minor, and assault with a dangerous weapon pursuant to the Major Crimes Act
and has the authority to prosecute lesser offenses by a non-Indian offender who victimizes an
American Indian or Alaska Native child in Indian Country under the Indian Country Crimes Act.
That act also provides for federal criminal jurisdiction for lesser offenses committed by an
American Indian or Alaska Native person against a non-Indian child if the tribe has not acted to
punish the accused. Finally, the state has exclusive criminal jurisdiction to handle crimes by non-
Indians against non-Indian children that take place on reservation territory. See pages 4-5 of the
chapter. As a result of this jurisdictional scheme, a ―crime committed in Indian Country can be
subject to investigation by local law enforcement, consisting of tribal and/or BIA police; state law
enforcement, such as the county sheriff, city police or State troopers; and/or Federal law
                                                                                                            cxciv
enforcement personnel from the BIA and the Federal Bureau of Investigation (FBI).‖
Obviously, this may subject victims of criminal child abuse and neglect to multiple interviews,
thereby increasing victim trauma. In addition, confusion over the roles and responsibilities of
investigators may lead to a failure to adequately prosecute these crimes.
           The Indian Child Protection and Family Violence Prevention Act authorized funding for,
among other things, coordination of tribal, local, and federal law enforcement agencies and court
                                                                                                            cxcv
systems in the area of investigating and prosecuting criminal abuse on reservations.
                                                                 cxcvi
However, this law has never been adequately funded.                        The Children‘s Justice Act (CJA)
Partnerships for Indian Communities, a Department of Justice grant program, has provided some
money for this purpose. This is an area where enhanced cooperation can only benefit Indian
children who are victims of conduct horrendous enough to be deemed criminal.
R13227-0                                                  275
Funding Issues
           There are two noteworthy funding issues that arise from a jurisdictional context. The first
involves funding for foster care. The second involves non-discriminatory access to state services
for children who are under the jurisdiction of tribal court.


Foster Care Funding
           ICWA provides that for purposes of qualifying for assistance under a federally assisted
program, licensing or approval of foster or adoptive homes or institutions shall be deemed
                                                   cxcvii
equivalent to licensing or approval by a state.              Regulations implementing Title IV-E of the
Social Security Act that govern federal funding for foster care and adoption assistance specifically
include tribally-licensed or approved foster families on or near the reservation in the definition of
                                                              cxcviii
―foster family home‖ for purposes of IV-E eligibility.                  Thus, states may (and under ICWA
should) be placing children in tribally licensed and approved homes and using Title IV-E funds to
pay for them
           However, Title IV-E also only defines ―placing agency‖ to include states and other public
                                                            cxcix
agencies with which the state has an agreement.                     Thus, the statutes creates an anomaly
where availability of funding for tribally licensed or approved foster homes otherwise eligible for
Title IV-E funding depends upon who places the child. Tribal placements in tribally licensed and
approved homes are not reimbursable under Title IV-E in the absence of an agreement with the
state. Although there are a number of agreements that have been negotiated, there are a variety
of reasons why tribes and states do not enter into such agreements, including a concern by some
states that accepting tribal standards will jeopardize their own Title IV-E funding. (Brown, Limb,
Whitaker, Clifford, & Munoz, 2000).




Non-discriminatory Access to State Services
           The principle that American Indian/Alaska Native people living on reservations are
                                                                                                   cc
entitled to non-discriminatory access to state services has been generally established.
Nonetheless, disputes have arisen concerning whether it is the federal or state responsibility to
pay for services when the need arises in connection with a legal proceeding outside of the state‘s
                cci
jurisdiction.         To address this issue, some states and tribes have reached creative agreements
allowing for state services to be provided pursuant to a tribal court order and for state employees
to take part in tribal court proceedings.


Conclusions
           Jurisdictional issues are important in determining how incidents of abuse and neglect of
Indian children are handled. The federal, state, and tribal governments all have roles to play.
R13227-0                                             276
Tribes have authority pursuant to their inherent sovereignty and ICWA. States and the federal
government have obtained some jurisdiction pursuant to various statutes.
           In general, the tribal court system is well-developed, although under-funded. Tribal
courts take many forms, from traditional forms to courts modeled after the United States‘ system.
The most typical tribal court is a Western-style court that has incorporated some aspects of tribal
culture.
           There are a number of specific jurisdictional issues that arise in the context of child abuse
and neglect, These include the extent of exclusive tribal jurisdiction; interaction between states
and tribes where there is concurrent civil jurisdiction and between the federal government; states
and tribes in the case of concurrent criminal jurisdiction; use of tribal standards by state courts;
and access to funding issues, particularly involving foster care and adoption, tribal courts, and
non-discriminatory access of reservation residents to state services.
           A number of recommendations are made in the final chapter to address these issues.
These recommendations include strengthening tribal programmatic and judicial capacity and
sovereign authority, encouraging intergovernmental agreements, training for state court judges
and agencies, amendments to and better oversight of the implementation of ICWA, and efforts to
assure non-discriminatory access to state services.




                                             REFERENCES


Brown, E., Limb, G., Whitaker, L., Clifford, C., & Munoz, R. (2000). Tribal/state Title IV-E
           intergovernmental agreements. Seattle, WA: Casey Family Programs.


Brown, E. & Limb, G. (2003). Community-based family and children services: Resources,
           services, challenges, and implications for community practice with American Indians. In
           E. Gonzalez-Santin & T. Perry (Eds.), Understanding the cultural context: Working with
           American Indian children and families. Tempe, AZ: Arizona State University, School of
           Social Work, Office of American Indian Projects.


Castillo, E. (n.d.) Short overview of California Indian history. Retrieved at
           http://ceres.ca.gov/nahc/califindian.htm.
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Cruz, C. (2000). Tribal law as Indigenous social reality and social consciousness—
           (Re)Incorporating customs and traditions into tribal law. Tribal Law Journal, 1. Retrieved
           at http://tlj.unm.edu/articles/czc/content.htm.


Deloria, V. & Lytle, C. (1984) The Nations within: The past and future of American Indian
sovereignty. New York, NY: Pantheon Books.


Goldberg, C. & Champagne, D. (1996). A second century of dishonor: Federal inequities and
           California tribes. Report for the Advisory Council on California Indian Policy. Retrieved at
           www.sscnet.ucla.edu/indian/ca/tribes.htm.


Congress. House of Representatives. Committee on Ways and Means. (1998)


Jaeger, L. (2002). Tribal court development: Alaska tribes. Pamphlet published by Tanana Chiefs
           Conference. Retrieved at http://thorpe.ou.edu/AKtribalct/index.html.


Jones, B.J. (2000). Role of tribal courts in the justice system. Pamphlet published by the Center
           on Child Abuse and Neglect.


Jones, B.J. (1995). The Indian Child Welfare Act handbook, a legal guide to the custody and
           adoption of Native American children. Chicago, IL: American Bar Association.


Melton, A. (1995). Indigenous justice systems and tribal society. Judicature, 73 (3).


National Indian Child Welfare Association. (2004). Comments presented at the Department of
           Health and Human Services FY 2006 tribal budget consultation with American
           Indian/Alaska Native organizations. Washington, DC.


National Park Service. (n.d.). A history of American Indians in California. Retrieved at
           http://www.cr.nps.gov/history/online_books/5view/5views1.htm.


Pevar, S. (2000). The rights of Indians and tribes: An American Civil Liberties Union handbook.
           Edwardsville, IL: Southern Illinois University Press.


Sekaquaptewa, Pat. (2000) Evolving the Hopi Common Law. Kansas Journal of Law & Public
           Policy, 91(761).



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Simmons, D. & Trope, J. (1999) P.L. 105-89 Adoption and Safe Families Act: Issues for tribes
           and states serving Indian children. Pamphlet published by University of Southern Maine,
           The National Resource Center for Organizational Improvement.


Vicenti, C. (1995) The reemergence of tribal society and traditional justice systems. Judicature,
           79(3).


Zion, J.W. (1998). The dynamics of Navajo peacemaking. Journal of Contemporary Criminal
           Justice, 14,(1).




                      Child and Family Systems Integration in Indian Country
                                Linda Jones, Terry Cross, Don Shircel



                                               Abstract
           Utilizing models of integration for programs in American Indian/Alaska Native
communities is critical to providing non-duplicative, effective services for tribal populations. Tribal
programs that work together on developing integrated services can provide holistic prevention
and intervention services for children and families, thus reducing the cost and increasing the
timeliness of these services. This chapter provides justification for service integration in Indian
Country and also provides examples of successful service integration efforts in two separate tribal
communities. These examples can serve as blueprints for additional tribal communities that are
exploring the innovative possibilities of service integration.

R13227-0                                          279
                                               Introduction
           In mainstream human services, the broad brush of identification, assessment, and
treatment of mental, physical, and emotional maladies and behaviors is often incomplete,
disregarding afflictions of the spirit because of a lack of understanding of Native traditions and
cultural practices. American Indian/Alaska Native people have used thousands of years of
teachings, customs, and traditions they have developed systems that provide meaningful change
and improvement in the lives of community members. In human services, professionals, as well
as grassroots helpers know and have experienced firsthand the folly of treating one aspect of an
individual‘s being without noting the effect of a lack of balance or harmony on an individual‘s, a
family‘s, and an entire community‘s well-being. Some refer to this ―medicine wheel‖ approach as
holistic medicine. Others call it good sense.
           American Indian/Alaska Native families have been served for too many years by systems
that disregard the importance of spirituality in defining health, well-being, and balance. Many
have witnessed the glazed-over eyes of providers who simply want us to get over it and get on
with our lives without having to pay heed to the gruesome details that define our particular
maladies.
           As Indian professionals, we have ventured into realms important to policymakers,
including, the realm of conducting research. There, we have experienced the arrogance of
mainstream science as well as its frustration with us for challenging the validity of research
instruments and methodology we know are not appropriate for use with American Indian/Alaska
Native populations.
           As Indian leaders, we know the importance of relationships—with our Creator, our Earth
and her elements, and our communities. Without a foundation of loving acceptance, trust, and
mutual respect, there is no system. There is no more important goal than that of loving service.
           This chapter will share resources, experiences, and ideas on service integration. The first
section provides an overview of service integration as well as a discussion of why such models
are important in child welfare and in Indian Country. The next section provides a discussion of the
barriers to service integration and some strategies for overcoming those barriers. Next, the
chapter turns to specific examples of service integration in two separate American Indian/Alaska
Native communities. As one of our spiritual leaders would say when he concluded his work, ―I
hope this helps.‖


Attributes of Services Integration


           Proponents of integrated services believe that poor education, health and social
           outcomes for children result in part from the inability of the current service
           systems to respond in a timely, coordinated, and comprehensive fashion to the

R13227-0                                            280
           multiple and interconnected needs of a child and his or her family. (Behrman,
           1992)


           Multi-service organizations and governmental entities like states, counties, cities, and
tribes, have realized that the various programs they administer have a tendency to become
isolated from each other despite the fact that they often serve the same clients. Such a situation
can result in costly duplication of time and effort as well as a complex maze that clients must
navigate to find the multiple services needed to adequately address their problems and issues.
           In order to remedy this situation, many organizations have begun to look into the idea of
service integration. Service integration can be defined as seamless services or a system of care
whose goal is ensuring that an individual or family receives a range of different services through
collaboration among schools, health care providers, and social service agencies. These services
are provided to the family without their having to endure multiple or repeated application or
registration procedures, eligibility screenings, and other types of administrative barriers. The
primary goal of service integration is solving problems of service fragmentation, overlap, and lack
of access and availability, thereby improving outcomes for children and families. This method of
providing services helps bring multi-service agencies together around a common mission and
specific practices for each client. Although there may be different disciplines providing an array of
services to one family, service integration can provide the necessary link between these
disciplines to ensure positive outcomes. Other advantages include combining resources for better
utilization and reducing duplication of services.
           An integrated service approach offers services that are family-focused, individualized,
community-based, comprehensive, accessible, and culturally competent. Providing these types of
services requires a multidisciplinary team effort involving family members. Services are provided
to the family in a setting that does not customarily provide such services. The team approach
seeks to eliminate fragmentation and duplication of services as well as to ensure that all service
providers have knowledge of pertinent information from all sources or individuals working with a
particular family member. The vision for most integrative efforts is for all agencies to be child-
centered and to work to increase the likelihood that all children remain healthy during their
important developmental years.
           Cross-program relationships are strengthened by joint case planning and joint staffings,
cross-training, and family involvement. These key factors comprise integrative efforts, which take
the relationship beyond simple referral. The goal of integration is to improve services, as well as
their availability and delivery, within a coordinated, efficient system. However, other program
fundamentals, such as program fidelity, positive organizational climates, staff personal efficacy,
relationship-building skills, and cultural competence, are just as important (Dennis, Steadman, &
Cocozza, 2000; Glisson & Hemmelgarn, 1998; Kumpfer, 1999).
           The issues that support the idea of service integration also form the catalyst for tribal
communities to create their own system of integrated services. Culturally based parenting
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classes, storytelling, and potlucks at school events or cultural based events are examples of
approaches used during the Tulalip Tribes‘ Starting Early Starting Smart program (SESS)
(Becker-Green, Cross, & Jones, 2003). These methods were beneficial because tribal program
staff were consistently more familiar with families‘ histories, relationships, and unmet needs in
their particular communities and, thus, could apply different intervention strategies that could
engage families in non-threatening, non-adversarial relationships.
           In reservation or urban Indian communities, it is well known through experience that
certain programs, either by design or by necessity, achieve greater success by engaging the
community in ways that do not threaten or overwhelm stressed families. One of the big
arguments in favor of integrated services is that by easing access and providing services though
multiple entryways, tribal communities have a higher degree of success in intervening with
families and gaining their trust.
           Examples of integrated services include the provision of behavioral health services to
children and their families in health care settings, early childhood education centers, daycare
centers, and public schools. Behavioral health includes the prevention, assessment, and
treatment of substance abuse and mental health issues, including family violence. It is well known
that efforts to help families through child welfare and child protective services alone often create
unnatural relationships; these result in defensive and hostile recipients whose ability to gain
positive value from services offered and to make lasting positive change is minimal.
           In health clinics, parents of newborn children can be targeted for substance abuse
treatment and parenting classes while the newborn receives neonatal assessment and other
family members receive family counseling. Sharing case assessment and planning
responsibilities can result in shared outcomes for the entire family. Likewise, in early childhood
education settings, parents involved with child protective services and preventive and
reunification services can receive child care services, mental health counseling, substance abuse
treatment, and/or parenting training using common assessment, planning, and care coordination
(Pecora, Bernstein, & Springer, 1999).


Why Service Integration Is Important for Tribal Communities
           Individual experience with regard to providing care in Indian communities is more than
adequate to justify service integration; however, formal documentation in the form of research
provides further proof of the importance of integration. This research parallels the teachings
received from our ancestors: the well-being of American Indian/Alaska Native children is the
responsibility of the tribal community as these children‘s present-day experiences provide the
foundation for the future of the tribe.
           Children born at environmental risk associated with extreme poverty have more than
twice the incidence of developmental difficulties as other children (Kochanek, Kabacoff, & Lipsett,
1987; Meisels & Wasik, 1990). Environmental risk factors primarily affect a young child through
the parent-child relationship and occur specifically as a result of a parent‘s limited emotional
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availability, sensitivity, and skill in responding to his or her infant (Bernstein, Hans, & Percansky,
1991). Adequate caretaking during the first years of life provides for the child‘s physical well-being
and supports cognitive and motor development. Research has shown that emotional and social
development are as important to the child‘s developing to his/her fullest potential as cognitive,
language, and motor skills. Stressful experiences during early childhood years can affect brain
development and place children at risk for developing a variety of cognitive, behavioral, and
emotional difficulties (Fox, Calkins, & Bell, 1994; Schore, 1996; Spreen, Risser, & Edgell, 1991).
In order to prevent the array of possible negative outcomes, multiple services, including those
related to substance abuse and mental health, should be made available early in a child‘s life.
Primary health care and early childhood education settings represent potentially powerful settings
in which to identify and target families with young children for services (Bernstein et al., 1991).
Additionally, working to strengthen the parent-child relationship, especially in early childhood
years, is viewed as a prime vehicle for bolstering child and family protective factors and
preventing child behavioral and developmental problems.              Key concepts to implementing
an effective service integration model include the ability to tailor services to meet the needs of
individual family members. Components are developed and implemented to meet the
developmental, prevention, and/or treatment needs of families served. The emphasis of
interventions should be on providing services early, in a preventive manner, before problems
become more serious and more costly to deal with. A variety of the strengths-based and solution-
focused models lend themselves well to early intervention and prevention practice (Berg, 1994;
de Shazer, 1985; de Shazer et al., 1986; O‘Hanlon & Weider-Davis, 1989; Walter & Peller, 1992;
Zimmerman, Jacobsen, MacIntyre, & Watson, 1996). Recognizing and using a family‘s adaptive
resources and allowing its level of motivation for change to guide the intervention process is
respectful and culturally appropriate for Native communities. The need to address risk factors
while addressing protective factors has been proven, since the more risk factors a child
experiences, the greater the likelihood is that they will experience behavioral health difficulties
later in life (Hawkins, Catalano, & Miller, 1992). Additionally, prevention and intervention
approaches must be combined to increase protective factors and reduce risk factors within a
child‘s family and home environment since families contribute both protection and risk to a child‘s
life (Belcher & Shinitzky, 1998).
           Core components for the purpose of intervening with families to impact child abuse and
neglect include substance abuse prevention, substance abuse treatment, mental health services,
and family/parenting services. Programs should include basic screening, assessment, resource
identification, and referral. Assessment processes need to be ongoing, since disclosures are
likely to increase over time as relationships with providers are developed and circumstances
change.
           The use of alcohol and other drugs is a good example of the connections between
problems. Alcohol/other drug (AOD) use is directly related to a host of education, health, and
social problems (Donovan & Jessor, 1985). For example, the use of cigarettes, alcohol, and
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marijuana increases the risk of the use of other illicit drugs. The use of these drugs is correlated
with other problems, including adolescent suicide, homicide, dropping out of school, motor vehicle
accidents, delinquency, underage sexual activity and unplanned pregnancy (National Institute on
Drug Abuse, 1985; Silverman, 1989; Lorion, 1991).
           Many of the family, personality, and behavioral risk factors that predict AOD use are
already evidenced during the preschool years. Being aware of these factors assists us in
identifying and intervening with children and families based on these characteristics (Kellam,
Ensminger, & Simon, 1980; Block, Block, & Keyes, 1988). Many of the same early problem
behaviors that predict later AOD use also predict behaviors such as delinquency, dropping out of
school, and teen pregnancy (Hawkins et al., 1992).


Barriers to Service Integration
           The most common barriers to service integration are a lack of resources, conflicting
program priorities, and poor communication. The ability of agencies to provide comprehensive
programs is limited by restrictions in funding, often because the problems of children and families
are divided into rigid and distinct categories that fail to reflect their interrelated causes and
solutions. Providing fragmented services results in other problems that pose an even greater
challenge to implementation of the medicine wheel approach. Personnel within each service
agency often have differing beliefs about children as well as different orientations to their
profession and tend to concentrate on their individual agency‘s service goals. Further
complicating the issue of access is the fact that children and youth are still dependent on parents
for permission to receive services as well as for transportation.
           In addition to the above restrictions to services, the present system of follow-up for
children and youth is insufficient. If families are already having problems, finding their way
through the maze of service agencies poses an additional burden. The rules and regulations of
various social service agencies and their funding sources impede the development and
implementation of creative strategies to serve families. Often, it is not even the rules themselves
but the perception that ―it can‘t be done that way‖ that restricts innovation.
           An additional barrier to service integration is that current service systems have been
developed to provide short-term intervention for problem behaviors by responding to episodes.
Agencies usually have funding streams to provide specific services to a population that meets
highly targeted eligibility criteria, thus restricting their access to the full range of resources
theoretically available in the system.
           Another issue involve ―least restrictive‖ setting mandates, which limit treatment options by
requiring children to fail at one level of treatment before they are permitted to receive the level of
treatment that would be most beneficial and effective. Still other barriers include parents‘
unwillingness to have their children assessed and ―labeled,‖ which often delays much-needed
treatment. Finally, services are often driven by the constraints of the service system instead of

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being designed to support and strengthen families or to promote parents‘ ability and opportunity
to make informed choices.


Examples of Successful Service Integration Models
Tulalip Tribes’ Start Early Start Smart (SESS) Project
            Starting Early Starting Smart (SESS) was a collaborative effort, funded by the Substance
Abuse and Mental Health Service Administration (SAMHSA) and Casey Family Programs that
focused on the provision, integration, and evaluation of behavioral health services to children
ages 0 to 7 and their caregivers within settings already serving children. The Tulalip Tribes was
one of 12 sites selected to participate in the original four-year, cross-site research study
evaluating this collaborative service delivery model. Even though each of the different sites
developed comprehensive interventions that were unique to their families, settings, and
communities, they all used common intervention components such as mental health and
substance abuse prevention and intervention, parenting education and support, care
coordination, and family advocacy. The common guiding philosophies of the SESS projects
included the recognition of the importance of relationships, the necessity to identify families in
need of services, and a common understanding that the design and delivery of integrated
services and supports must involve a comprehensive and holistic system of care.
            Through participation in the SESS project, each of the 12 participating sites 1) designed
and provided integrated behavioral health services to children and their families, 2) carried out
local evaluation research, and 3) participated in cross-site research. In addition to their active
participation in the original four-year project, the Tulalip Tribes applied for and were selected to
participate in an 18-month extension of the SESS project in order to articulate a program blueprint
for an early childhood intervention project culturally tailored to serve American Indian/Alaska
Native children and families. The main goal of the Tulalip Tribes extended SESS project was to
replicate the successes and sustainability of the original four-year SESS project in additional tribal
communities located in Washington State.
            Using service integration principles as a guide, the Tulalip Tribes transformed their Indian
                              77                      78
Child Welfare program              into beda?chelh,        a culturally specific, child-focused, family-centered,
and strengths-based program. Through beda?chelh, staff worked creatively to design integrated
services promoting family and cultural preservation, health, and resiliency in the community‘s


77
     The Indian Child Welfare (ICW) program was established in 1980 to monitor state compliance with the Indian Child
Welfare Act of 1978 (ICWA). Before 1995, the ICW program operated as the tribal counterpart of the state child protective
services, and program policies were often punitive toward families whose own grief and abuse issues interfered with
adequate parenting. The legacy of children raised by parents who had been raised by boarding schools has never been
adequately addressed, and thus removal of children became intergenerational.
78
     In Lushootseed, the traditional language of the Coast Salish people, the word beda?chelh means ―our children‖. The
mission of ―beda?chelh‖ is to enhance healing in their children and families and to promote family and cultural
preservation.
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children and families. In addition to the service component, staff developed culturally responsive
ways of measuring success and change in the children and families served through the program.


           Project description.
           The Tulalip SESS project provided culturally relevant prevention, intervention, and
supportive services in early childhood settings for both tribal and mainstream children (aged 3-5
years old) and their families that were at risk of substance abuse, mental health problems, and
domestic violence. The project also monitored intervention services for children and families
affected by substance abuse and mental health problems. The main goals of the Tulalip SESS
project were to reduce risk factors and enhance protective factors in children and parents by


              promoting recovery from substance abuse and mental health problems in parents by
               preventing these problems in children;
              strengthening the skills of individual children in the social, emotional, and cognitive
               domains; and
              strengthening the bonds between children, their families, and their communities.


           Using an integrated, multidisciplinary team approach, the Tulalip SESS project designed
and implemented individual, family, and community-based, culturally relevant early intervention
and prevention services that were based on the traditional belief that health and well-being come
from a balance among mind, body, spirit, and context. The project followed this approach to well-
being and developed intervention aimed at reducing risk and promoting healing and bonding in
―at risk‖ children and their families. The early education interventions for children included 1)
traditional storytelling and the Nee-Kon-Nah Time curriculum (a substance abuse prevention
curriculum) to enhance connectedness, trust, self-esteem, and reading readiness; 2) milieu
therapy, conducted by certified therapists, to enhance therapeutic aspects of the preschool
environment; and 3) on-site gymnastic lessons to improve motor skills and to promote self
regulation of behavior. In addition, play therapy for children and integrated behavioral health
services for their family members (e.g., substance abuse treatment, mental health services,
domestic violence treatment, and individualized in-home services with parenting education) were
provided on-site at the pre-school, in an agency setting, and in the home. Parenting education
was based in traditional American Indian/Alaska Native child-rearing practices, using the Positive
Indian Parenting curriculum, which was developed and published by the National Indian Child
Welfare Association (NICWA). Community interventions included education of community
members on risk and protective factors and recruitment of these individuals to serve on an
advisory board as family support staff, research assistants, or volunteer grandparents.
           The strengths-based, child-focused, and family-centered approach to service delivery
developed at the Tulalip site enhanced collaborative community efforts to service delivery in this
tribal community. A report sorting out what worked, what elements are replicable in other sites,
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and what elements are unique to this site‘s experience is available from the tribe or from the
NICWA. The report, entitled The Tulalip Tribes Starting Early Starting Smart Experience: Using
the Relational Worldview Model to Create a Project Blueprint, provides a model plan for use in
other tribal communities.


Tanana Chiefs Conference Service Integration
           The Tanana Chiefs Conference (TCC) is a regional Native nonprofit corporation centered
in Fairbanks, Alaska. It is governed by a full board of directors that includes 42 delegates
selected by his or her respective tribal councils and local governing boards. Tanana Chiefs
Conference provides a wide range of health and social services in conjunction with 37 federally
recognized Athabascan tribes, which serve approximately 12,000 Alaska Native and American
Indian tribal members who reside in Fairbanks and more than 40 remote villages. The small,
isolated villages are spread out over a 235,000-square-mile service area in Alaska‘s Interior.
Since the passage of the Indian Child Welfare Act of 1978 (ICWA), TCC and its member tribes
have been aggressively developing and implementing programs and integrating services focused
on protecting children and strengthening families and communities.
           Roughly half of all Alaska interior tribal children in protective custody are in tribal custody;
the remaining half are in state custody with joint intervention by their tribes. Cases involving tribal
children in state protective custody are managed under cooperative agreements with the tribes
through TCC‘s Office of Child and Family Services (OCFS). OCFS is a part of TCC‘s newly
configured Client Development Division, which implements a wide range of family-centered
programs utilizing comprehensive service integration and funding consolidation models.
           The OCFS integrates the efforts of 37 village-based, paraprofessional Tribal
Family/Youth Specialists (TFYS) with professional-level support staff located in Fairbanks. These
specialists are supervised locally by their respective tribes and are the single point of contact
regarding village services aimed at preventing, intervening in, and managing all child protection
cases involving tribal members from their communities. The TFYS are funded by 37 ICWA grants
through Bureau of Indian Affairs 638 contracts, self-governance compacts, and separate
Department of Health and Human Services (DHHS) Family Violence and Prevention Services Act
grants awarded annually to each tribe.
           Office of Children and Family Studies (OCFS) central office staff members supporting the
37 village-based tribal staff include the following:


              A program coordinator responsible for the overall administration of grants and
               contracts relating to child protective services, program compliance, and quality
               assurance; the training of village-based tribal staff; and supervision of central office
               OCFS personnel
              Three case managers, with separately assigned tribal, state, or Title IV-E caseloads,
               who jointly manage all cases along with their respective village-based TFYS
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              A foster care and adoption specialist who recruits, licenses, monitors, and supports
               foster care providers, guardians, and adoptive parents
              An administrative assistant who provides program support and processes payments
               for all client-related services


           The six centralized staff are funded through grants under Title IV-B subparts 1 and 2;
individual contracts with the tribes; an agreement with the state for pass-through federal
reimbursements of applicable administrative and training costs under Title IV-E; and the tribally
administered Temporary Assistance for Needy Families (TANF) program, which provides staffing
to coordinate case management and client support services.
           Foster care maintenance and subsidy payments for guardians and adoptive parents are
funded by the child welfare assistance program through the TCC, BIA Self-Governance compact,
and funding for relative care through its tribal TANF program. Foster care providers, guardians
and adoptive parents are assisted in meeting tribal health and safety standards through funding
from TCC‘s child care and development fund, housing improvement and low income home
energy assistance programs. Respite care is provided for children with special needs through
TCC‘s Developmental Disabilities and Fetal Alcohol Syndrome/Fetal Alcohol Effects (FAS/FAE)
grant programs, which are funded by the state. Adult parents with disabilities receive prioritized
case management and support services through a federally funded Indian Vocational
Rehabilitation, Section 121 program, that is also administered through TCC. Childcare, parenting
skills, and specialized training are provided to parents, family members, and care providers
through TCC‘s regional childcare and development fund, village-based Head Start, Early Head
Start, and itinerant infant learning programs.
           Through the consolidation of services and funding streams under the TCC Self–
Governance compact and the P.L. 102-477 plan, a wide range of additional support services are
immediately available to families served by TCC‘s OCFS. General educational development and
distance- delivered high school and post-secondary education, vocational training, tuition,
housing, transportation, rental assistance, energy assistance, temporary financial assistance,
financial literacy training, as well as youth and adult career counseling, subsidized on-the-job
training, employment support, and job placement services are provided through more than 20
additional state-funded and federally funded programs offered through TCC‘s offices of Early
Child Development, Education, Workforce Development, Employment, Financial Assistance, and
Housing and Family Support Services, which are also part of TCC‘s Client Development Division.
           The Client Development Division coordinates its services with other divisions and agency
programs both within and without TCC. Health and mental health services, including inpatient and
outpatient alcohol and substance abuse treatment and village-based clinical care for families, are
provided by TCC‘s Indian Health Service (IHS) and state-funded Health Services Division.
Families have immediate access to the ―Ch‘eghutsen‖ program, which is the SAMHSA-funded
Circles of Care program administered through a joint partnership between TCC, the Fairbanks
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Native Association, and the University of Alaska. All child welfare cases involving tribal children in
state custody are jointly staffed and managed by a team consisting of the village-based TFYS,
designated staff from the TCC OCFS, and the State of Alaska‘s Office of Children‘s Services.
Tribal interventions in state custody proceedings are filed by attorneys of the TCC Legal
Department who also represent the tribes in state court hearings involving protective custody,
placement, and adoption. Tribal courts are assisted in drafting domestic violence restraining
orders and child custody orders by the tribal government specialists of TCC‘s federally funded
Tribal Development Division.
           The Director of the Client Development Division serves as a standing member of the
Senior Management Team of the TCC. This maximizes individual program access to the
agency‘s executive and administrative officers and assures articulation with the agency‘s other
programs and its broader array of resources, such as its region-wide telecommunication and
information systems, its planning and development grant writing staff, and the finance and
accounting and legal departments. Both the director of TCC‘s client development division and the
program coordinator for the OCFS serve as agency representatives on the Tribal/State
Collaboration Group, a statewide workgroup of tribal child protection program directors and the
deputy commissioner, regional managers, and senior management staff of the state‘s Office of
Children‘s Services that meets quarterly to address child protection service issues and to develop
service integration strategies among state and tribal child welfare programs.
           Tanana Chiefs Conference also coordinates its child welfare services with a substantial
number of programs within its Client Development Division, throughout its organization as a
whole, with its constituent tribes, and with key state agencies. By consolidating its program
resources and administrative infrastructure, it has been able to more effectively leverage its
program services to create additional resources for its children and families through external
collaborative partnerships.
           There is reason to believe that the efficiencies and improvements in program articulation
from these system integration efforts will result in improved client outcomes as well. A recent
analysis of data provided by the State of Alaska, Office of Children‘s Services (commissioned by
the state and performed by Casey Family Programs) indicates a three-year decline in the average
number of months in care for Alaska Native children in the TCC service area. The data also
indicates that there was an increase in the average number of months in care for Caucasian
children during the same time frame. In 2003, Alaska Native children in the TCC service area
spent an average of 3.2 months less in state care than did their Caucasian counterparts. While no
research has been done that might validate the data or offer explanations for these trends, it is
interesting to note that no other region in the state indicated a similar trend. In each area of the
state, except for the TCC region, Alaska Native children spent an average of 5 to 5.9 more
months in care than did their Caucasian counterparts (Casey Family Programs, Disproportionality
Data for Alaska [as provided by the State of Alaska, Office of Children’s Service]) July 28, 2004).

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Tanana Chiefs Conference plans to explore how its efforts to coordinate and integrate their tribal
child welfare program services with the state might be related to such successful outcomes.
           The TCC, along with the tribes of Alaska‘s Interior and their collaborative agency
partners, has developed an effective organizational structure and an innovative service
integration model that creatively meet the unique challenge of simultaneously providing a wide
range of culturally competent services over great distances to children and families in multiple,
remote Alaska Native communities. There is reason to believe that client outcomes may be
positively affected as well.


Discussion
           The Tulalip SESS project and TCC are only two examples of many service integration
projects in process around the country. Another project is the Sacred Child Project in North
Dakota. Having already demonstrated its worth in mental health, the Sacred Child Project has
now been funded by the Administration for Children and Families to demonstrate its efficacy in
child welfare. The Circles of Care initiative, funded by the Center for Mental Health Services at
SAMHSA, has had similar results in children‘s mental health. Outcomes to date in most of these
service integration demonstration projects are not only promising but phenomenal. These
successes are also well documented through intensive evaluations.
           Overall, communities have experienced dramatic changes in attitudes about services on
the part of families. New partnerships between behavioral health professionals and natural
helpers and healers have emerged. Extended family members have been engaged as part of the
systems of care, and diverse professionals have learned how to work more effectively together.
Outcomes for children have been strong, and families have changed from resisting services to
embracing services. Indian scholars attribute the success of this model, in part, to its congruence
with Indian culture, i.e., its holistic view of human well-being as a matter of balance and harmony.
The strengths of Indian culture, such as the role of family and kin, the role of spirituality, and
traditional approaches to healing, have all been critical parts of the demonstration projects
(Becker-Green et al., 2003; Cross, Earle, Echo-Hawk, & Mannes, 2000).
           In light of the positive findings to date, Congress should support holistic systems of care
service models for child welfare in Indian communities. The major factor constraining these
models so far has been the difficulty for tribes of sustaining them without access to base funding
such as Title XX, Title IV-E, Title XIX, Mental Health Service block grants, and some new form of
child protection entitlement for Indian children. Congress needs to take broad and bold action to
give Indian children access to funding streams already available to all other children in the nation.




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           Silverman, M.M. (1989). The integration of problem and prevention perspectives: Mental
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mental disorders, alcohol and other drug use in children and adolescents. Rockville, MD: DHHS
Publication No. (ADM) 89-1646.


           Spreen, O., Risser, A.T., & Edgell, D.E. (1995). Developmental neuropsychology. New
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Walter, J.L. & Peller, J.E. (1992). Becoming solution focused in brief therapy. New York, NY:
           Brunner/Mazel.


Zimmerman, T.S., Jacobsen, R.B., MacIntyre, M. & Watson, C. (1996). Solution-focused
           parenting groups: an empirical study. Journal of Systemic Therapies, 15, 12-25.




                                    Chapter Recommendations
                                       David Simmons, MSW


                                 Chapter 2: Tribal/State Relations
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       1. Support the development of effective federal and state policies that give tribes more
             opportunities to administer child welfare programs and incentives for states to enhance
             services to Indian children and families.
       2. Create an environment and structure for effective communication and education efforts
             between states and tribes on child welfare practice issues.
       3. Support more comprehensive data collection and research efforts that target American
             Indian/Alaska Native children and families in state and tribal child welfare systems.


Federal and State Policies
             The foundation for effective tribal-state relationships is good federal and state policy.
Federal and state policy should give tribes options, such as direct funding for tribal program
administration, opportunities for tribes to contract with states on a government-to-government
basis to assume some program functions (i.e., case management, placement of children,
recruitment of American Indian/Alaska Native foster parents) when they don‘t want to assume all
functions, and assurance that state programs will protect American Indian/Alaska Native children
                                                                                                                    79
who continue to be served by the state when tribes opt not to directly administer programs.
Some states and tribes have also chosen to work together to develop overarching state policy
that sets the stage for a government-to-government relationship and guides and encourages
                                 80
tribal-state collaboration.
             Tribes should have the option to directly receive commensurate federal resources for all
of the federally funded programs and services that states administer, including Title IV-E Foster
Care and Adoption Assistance and the Title XX Social Services block grant. When they opt not to
administer these programs, they can hold states accountable for their responsibilities for
American Indian/Alaska Native children. Tribes may opt to not administer the programs because
of resources required to do so, their lack of capacity to do so, or simply because of their desire to
have the services provided by the state.
             Accountability measures that can be included in federal and state policies are as follows:
requirements for consultation (i.e., on Title IV-B plans and Independent Living plans under Title
IV-E), requirements for states to describe and explain their provision of services to American
Indian/Alaska Native children, requirements to distinguish data on American Indian/Alaska Native
children from non-Indians (including collecting data on tribal affiliation), assurances that American
Indian/Alaska Native children and families will receive equal/equitable services under state



79
     In the case of ICWA, this assurance of protection of American Indian/Alaska Native children is based on the state‘s
responsibility as articulated by federal law and not on a tribe‘s choice not to operate a program but.
80
     For example, in the State of Washington, the Centennial Accord, a broad statement acknowledging tribes as sovereign
governments and framing a positive tribal-state relationship, preceded a specific tribal-state agreement on child custody
services and proceedings.
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programs, and the incorporation of monitoring procedures, such as the Title IV-B child and family
service reviews, into program requirements.
             Additionally, the federal government can provide more opportunities for tribal-state
collaboration through targeted waivers and federally-funded grant programs and can
acknowledge and reward states and tribes that are working cooperatively to improve service
delivery. Existing legislation could be amended to incorporate specific program bonuses for
cooperative intergovernmental relationships that lead to improved service delivery and efficient
use of funds.


Program Implementation and Practice
             Practice issues relating to improved tribal-state working relationships point to additional
and on-going education and training for tribal, state, and federal policymakers and administrators.
Educational components should address both general governmental structure and functioning as
well as issue-specific information. Forums for tribal-state dialogue need to be put in place. As
Chairman Garland Brunoe of the Confederated Tribes of Warm Springs Reservation noted in
testimony before the Senate Indian Affairs Committee, ―While we exercise our own jurisdiction,
we do try to work closely with the State of Oregon . . . Jurisdictional issues are complicated and
not easy to resolve, but improved communication and coordination can help‖ (Reauthorization of
the ICPFVPA, 2003). Model tribal-state agreements for various programs can be developed
(Brown et al., 2000). Practice standards for cultural competency should be developed and
implemented. Efforts that facilitate tribal capacity building should be encouraged, as the care of
American Indian/Alaska Native children in American Indian/Alaska Native homes is a priority.
Federal funding can also support an examination of tribal-state relationships and agreements,
documenting models and highlighting key benefits and obstacles


Data Collection and Research
             Data regarding the abuse and neglect of American Indian/Alaska Native children should
be collected and tracked. It is unacceptable to have inadequate, inaccurate data on the abuse
                                                                           81
and neglect of American Indian/Alaska Native children.                          Tribal definitions of ―abuse‖ and
―neglect‖ can be developed. Training and resources should be made available to facilitate tribal
participation in the National Child Abuse and Neglect Data System.
             Federally supported and independent research and evaluation is needed to better identify
and understand the variables associated with tribal-state relationships and how these variables
                                                                                                               82
affect child welfare services and outcomes for American Indian/Alaska Native children.


             81
                  For more information on data issues around the abuse and neglect of Indian children, see Earle (2000) and
             Earle & Cross (2001).
82
     See Earle‘s (2000) discussion of variables (i.e., clear lines of communication, an existing intergovernmental agreement,
etc.) that correlate with higher tribal-state relations satisfaction ratings.
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Community-based research that gives tribal communities a role in identifying research questions,
developing an appropriate methodology, conducting the research, interpreting the findings, and
translating the research into practice is necessary.
           Resources must be devoted to better understanding the gaps in child welfare service
delivery to American Indian/Alaska Native children, specifically identifying where federal, state,
and tribal resources are inadequate and/or unavailable. The growing incorporation of culturally
relevant programs in American Indian/Alaska Native communities should be examined in order to
document the outcomes of these programs (as opposed to generic state programs) for American
Indian/Alaska Native children. Finally, a better understanding of the varied models of tribal child
welfare systems and gaps in service delivery may lead to the identification of desired
performance measures for tribal child welfare systems and tribal definitions of ―success.‖

   Chapter 3: Data Issues Regarding Abuse/Neglect of American Indian/Alaskan Native
                                               Children


       1. Support changes to the Indian Child Protection and Family Violence Prevention Act to
           provide support for tribal child abuse and neglect data collection system development
           and administration.
       2. Develop and implement a mechanism for tribes to participate in a nationwide child abuse
           and neglect reporting system.
       3. Promote research in Indian Country to develop critical data regarding child abuse and
           neglect.


Support for Changes to the Indian Child Protection and Family Violence Prevention Act
           The primary recommendation in the area of policy is to improve implementation of the
Indian Child Protection and Family Violence Prevention Act passed in 1990 (P.L. 101-630). This
Act, designed to provide requirements for child protection investigation and reporting in Indian
Country, has never been fully implemented. Tribal grants authorized under the law have not
received appropriations and therefore have not been available to eligible tribes to support data
collection or coordination efforts. The current law does not specifically provide funding support
for data collection system development or operation and should be amended to provide for the
development of a reporting system for data on abuse and neglect of children in Indian Country.
Such a system should be supported at the same level as states have received in related federal
law.


Develop a Mechanism for Tribes to Participate in a Nation Wide Reporting System
           Procuring accurate and reliable data on child abuse and neglect of American
Indian/Alaska Native children who are under tribal jurisdiction can only be done by surveying
each tribe individually that keeps that data. Consequently, this data is unavailable to researchers
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and federal policymakers that could have a role in improving policies and funding for tribal child
welfare systems. The National Indian Child Welfare Association is one organization that has
been funded to develop and pilot such a mechanism, but further work is needed to finalize a
system and work with interested tribal governments to participate. Whatever mechanism is
developed, it should closely parallel and supplement the National Child Abuse and Neglect
Reporting System (NCANDS).

Promote Research in Indian Country to Develop Critical Data Regarding Child Abuse and
Neglect
           Cost-shared pilot projects to answer critical policy and practice questions should be
developed. The lack of data and appropriate research models to answer important policy and
practice questions regarding abuse of American Indian/Alaska Native children is significant and
impedes reform efforts that could benefit Indian children, families, and tribes. Support of these
efforts should involve not only the federal government but tribal organizations, states, and private
organizations. Partnerships between these entities should be encouraged, but tribal
governments and Indian organizations must be a significant partner in any effort to stimulate
improved research methods and ensure that research findings are interpreted carefully and
accurately. Research is indicated in the following areas.

Collection of Child Abuse and Neglect Data
           A wide-scale study of the collection and analysis of child abuse and neglect data from
tribes is needed to both obtain information on abuse and neglect and to train tribal communities in
the necessary skills related to the use of data. This pilot program should include representation
from a broad but representative sample of tribal communities, considering factors such as
population size, geographic location, and level of infrastructure. An ongoing review of costs,
rates of abuse/neglect, and outcomes should be part of the national data collection pilot.

Investigation of Underlying Causes of Abuse and Neglect in Indian Country
           Current research abounds on theories and causes for abuse and neglect in mainstream
communities, but little has been done to document how this plays out in tribal communities. An
investigation into the current (as opposed to the historical) causes of abuse and neglect in
modern American Indian/Alaska Native communities would provide tribal groups, policy makers,
and other organizations involved in child protection in Indian Country with information about how
and when to intervene. Tribal communities should take the initiative for this sensitive area of
research, providing the expertise to complete the research.


   Chapter 4: Effects of Abuse and Neglect on American Indian/Alaskan Native Children




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    1. Support improved poverty reduction programs and employment opportunities in Indian
           Country to reduce the risk factors for child abuse and neglect.
    2. Support changes to the Title IV-E Foster Care and Adoption Assistance authorizing
           statute to allow tribes to administer the program directly.
    3. Fully implement the No Child Left Behind Act with respect to tribal and BIA run schools.
    4. Increase training for tribal prenatal health care providers on assessment of child abuse
           and neglect.
    5. Increase support for training of state and tribal child welfare professionals.
    6. Increase the availability of preventive and treatment services to divert American
           Indian/Alaska Native child abuse and neglect victims from the juvenile justice system.
    7. Increase opportunities for tribally directed research on child abuse and neglect.


Improving Poverty Reduction and Employment Opportunities Programs
           Nationally, Indian families and children are under considerable economic and social
distress. Welfare reform is providing less support for these families than they need in many
cases, which can increase the risk factor for abuse and neglect of American Indian/Alaska Native
children. Cross, Earle, and Simmons (2000) note that there is already an increase in the number
of children falling below the poverty level. If this trend continues, as Indian families reach the end
of their eligibility for TANF, there may be a sharp increase in rates of neglect and placements of
Indian children resulting from this neglect (Cross, Earle, & Simmons, 2000).
           As the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PL 104-
193) is reviewed and reauthorized, tribal governments will need increased flexibility to serve the
needs of a wide variety of tribal members receiving assistance (NCAI, 2001). Federal policies
should authorize tribes to provide a broad array of services and activities to enhance employment
options for TANF recipients. For example, development of appropriate child care resources and
alternatives is vital for the protection of American Indian and Alaska Native children as parents go
to work in rural areas with scarce child care resources. Since ―education first‖ is a priority for tribal
governments, they should be able to include education, job creation, and economic development
components in TANF programs. Federal TANF legislation should continue to provide funding
directly to tribes based on a government-to-government relationship. Finally, TANF should be
adequately funded to meet tribal needs, including funding for tribal administration of programs
and special needs of reservations. To reduce potential conflict and ambiguities between tribes
and states, federal law and regulation should provide the structure to encourage states to engage
in diplomatic relations and constructive cooperation with tribes (NCAI, 2001).


Access to Title IV-E Foster Care and Adoption Assistance Funding
           Consistent with tribal administration of TANF programs, legislation should authorize direct
tribal administration of Title IV-E foster care and adoption assistance programs (25 U. S. C. §§
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670-679, 2002). While Congress intended for the Title IV-E program to serve all eligible children
in the United States, an oversight in the law leaves Indian children under the jurisdiction of a tribal
court without Title IV-E benefits and protections (NICWA, 2004). The statute provides services
only for income-eligible children placed by states and public agencies with which states have
agreements. (NICWA, 2004). Tribal governments need access to funding to support tribal child
welfare programs to intervene to protect children experiencing child abuse and neglect on
reservations and to be able to extend services to tribal members residing in urban communities.


Fully Implement the No Child Left Behind Act
           Given the history of boarding schools involved in institutional abuse of American Indian
and Alaska Native children, as well as the current boarding school conditions, the federal
government has a special obligation to provide for the educational and psychological needs of
children still receiving services from BIA schools. The initial proposal for the No Child Left Behind
Act (PL 107-110) contained specific funding to aid tribal schools and to provide renovations for
BIA schools. To avoid further institutional neglect in these schools, which is related to
underfunding and inadequate resources, the proposals to aid tribal and BIA managed schools
must be fully funded. These schools need funding support and facility enhancements to provide
needed services and improvements. The more damaging effects of boarding schools can be
reduced with changes in staff, training, and emphasis (Robin, Rasmussen & Gonzalez-Santin,
1999).


Increased Training for Tribal Prenatal Health Care Providers on the Identification of Abuse
and Neglect
           Given the risks associated with low birth weight and lack of prenatal care, access to
prenatal health care is crucial for American Indian and Alaska Native mothers (Willeto, 2002).
Starting at birth, health care providers have a vital role in assessing children for known child
abuse and neglect risk factors and increasing identification of children at risk or experiencing
abuse and neglect. Child welfare professionals depend upon health care professionals to carry
out these abuse and neglect risk assessments and coordinate with them on intervention
strategies. Given the clear connection between experiences of child abuse and neglect and long-
term psychological and health effects, health care providers should assess for cumulative lifetime
as well as current abuse among children and women (Bohn, 2002). Training for tribal health care
providers lags behind that of other public and private health care systems in many cases. In
order for tribal health professionals to carry out their vital role in protecting children from abuse
and neglect, increased training is necessary for health care providers who serve Indian children
on tribal lands and greater support for participation on tribal child protection teams.


Support for Training of State and Tribal Child Welfare Professionals

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           Training is necessary to reconcile differing perspectives of state or contracted child
welfare workers and tribal child welfare workers on child abuse and neglect. American Indian
cultures have different perspective about how to provide social and health services that may call
into question mainstream understanding of social and health problems and how social work and
child welfare services are taught (Voss, Douville, Little Solider, & Twiss, 1999). For example,
when Lakota perspectives are taken into account, social work practice benefits from a greater
awareness of spirituality, Shamanic practices, and the role of the natural world (Voss, Douville,
Little Solider, & Twiss, 1999). Voss, Douville, Little Solider, & Twiss (1999) explain the primacy of
extended family and kinship relations over individualism for traditional Lakota peoples including
recognition and respect for kinship bonds and generous giving among family members. Within the
traditional worldview, the need for healing for a child, her family, and her community is explained
by an understanding that the child and community have lost the ability to be in harmony with the
life process (Duran & Duran, 1995). A child, his family, and his community are all part the life
process. If one or all parts are out of balance, all parts (adolescent, family, and community) need
to participate in the healing process (Duran & Duran, 1995). To understand these perspectives
and practice with American and Alaska Native populations, Weaver (1999) recommends that
social workers understand and appreciate diversity within Native American populations, know the
histories and cultures of these populations, have good general social work skills, be aware of their
own biases, be willing to learn, and value social justice.
           The National Indian Child Welfare Association (NICWA) offers an online Indian child
welfare course that explains the key provisions of the Indian Child Welfare Act of 1978 (ICWA)
and provides steps state, county, and tribal child welfare workers can take to provide Indian child
welfare services in compliance with federal law and effective practice methods. The course also
provides general information about Native American and Alaskan Native cultures. NICWA also
has developed a certification program for tribal child welfare. The certification program is
designed to assist tribal child welfare workers to have specialized knowledge and understanding
of the history, traditions, values, and family systems of the tribal groups served. Certified tribal
child welfare workers will be trained to promote policies and practice that demonstrate respect for
differences, support the expansion of cultural knowledge and resources, and advocate for
programs and institutions that demonstrate cultural competence.
           A more ambitious project at the University of Minnesota Duluth (UMD) Department of
Social Work provides child welfare training to workers who serve at-risk children and their families
through county and tribal agencies. The project recruits professionals from county and tribal
agencies across northern Minnesota who serve families and children at risk. Cultural exchanges
occur in seminars including both tribal and county child welfare workers. This social work
education program is made possible by a $2 million contract from the Minnesota Department of
Human Services. Funding comes from federal Title IV-E funds and requires that UMD provide
local matching resources for the project. Again, the use of IV-E funding and CAPTA training
grants are important to expand training opportunities for tribal and state child welfare workers.
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Availability of Preventive and Treatment Services to Divert American Indian/Alaska Native
Child Abuse and Neglect Victims from the Juvenile Justice System
           Specific preventative and treatment services need to be provided to divert American
Indian and Alaska Native youth from involvement with the juvenile justice system and to screen
youth who do enter juvenile justice programs for adverse effects of neglect and child abuse.
American Indian and Alaska Native youth who experience neglect, child abuse, or cumulative
abuse frequently have no other services available to assist them with resulting psychological and
substance abuse problems either off the reservation (Crofoot Graham & Corcoran, 2003) or on
the reservation (Duclos, Beals, Novins, Martin, Jewett, & Manson, 1998). These youth tend to act
out their distress until the community must deal with them through juvenile justice options. This
has a direct connection to the federal government and federal juvenile justice costs. Because
American youth who commit crimes on reservations commit federal crimes, the majority of youth
admitted to facilities under contract with the Federal Bureau of Prisons in 1997 were American
Indian (72% or 136 of the 189 youth; Strom, 2000). Services on reservations to reduce the effect
of child abuse and neglect could potentially directly reduce the number of American Indian youth
in federal facilities.


Opportunities for Tribally Directed Research on Child Abuse and Neglect
           Child welfare workers and policymakers have very little research to guide efforts to
address the issues of child abuse and neglect for American Indians and Alaska Natives. A key
barrier to research for these communities has been a lack of local ownership of the research,
which prevented many American Indian and Alaska Native communities from being willing to
participate in research efforts (DeBruyn, Chino, Serna, & Fullerton-Gleason, 2001). To engage
these communities in research, they will need to be able to generate their own concerns for
research and be able to review and give input into research planning, data, outcomes, and
reports or articles (DeBruyn, Chino, Serna, & Fullerton-Gleason, 2001). This suggests the priority
for research will reflect a community and family involvement perspective and emphasize
investigations of the effects of supports for American Indian and Alaska Native families and
communities to allow them to reduce levels of child abuse and neglect.
           Child Abuse Prevention and Treatment Act funded research priorities from the Keeping
Children and Families Safe Act of 2003 (P. L. 108–36) could be designated specifically to
address unmet research needs for American Indian and Alaska Native communities including
research on the effects of maltreatment on child development and identification of successful
early intervention services. American Indian communities would also benefit from research on
evaluation of best practices for achieving improvements in child protective services, including
culturally appropriate practices, and effective approaches for collaboration between CPS and
juvenile justice systems. Identification of specific risk factors and protective factors for American
Indian and Alaska Native youth is a pressing need. This is especially important for infants, who
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are most vulnerable to the effects of maltreatment. Further research will be most valuable if
American Indian and Alaska Native sample populations are identified for urban and rural
locations, different regions, and different tribal and cultural affiliations.


                 Chapter 5: Child Abuse and Neglect Prevention in Indian Country


    1. Congress should enact legislation to create a comprehensive child abuse prevention
           program for federally recognized tribes. Such a program should support the national
           development of culturally specific materials, exchange of promising practices, technical
           assistance, evaluation and research, as well as local tribal prevention efforts.
    2. Require all cabinet-level departments to review grant and formula programs in which
           tribes participate for opportunities to support child abuse prevention and to coordinate
           those efforts across departments. Cost-sharing pilot projects should be implemented to
           deal with the urgent need for child abuse prevention in Indian Country.
    3. Amend Title XX of the Social Security Act to provide direct funding to tribes that could be
           used for prevention activities.
    4. Create a national Indian children‘s trust fund for child abuse prevention based on the
           state models and organized as a publicly held corporation. This trust fund would have
           the capacity to raise funds, receive federal matching monies, and make grants directly to
           tribes and Indian organizations.


Creating a Comprehensive Prevention Program to Fund Tribes
           The key to prevention is making sure that services are community-based, culturally
appropriate, and adequately funded. Promoting awareness of child abuse and neglect is the
starting place. Once the awareness has been established, facilitating community ownership of the
problem is the next step. Everyone in the community who wants to support prevention efforts
should have an opportunity to do so. Every person or program working to prevent child abuse
should have access to technical assistance and the best knowledge available. The work should
be evaluated, and effective practices should be disseminated nationally.


Improving Coordination Between Federal Departments to Support Tribal Prevention
Activities
           Current programs in HHS, Interior, Justice, Education, and HUD have some function in
the prevention of child abuse in Indian Country. However, there is no mechanism to coordinate
or consolidate these program resources into a meaningful and focused effort. Pooling small,
diverse funding resources into a shared cost arrangement could allow immediate attention to this
issue while a more comprehensive approach, as discussed in recommendation 1, is being
developed.

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Provide Tribal Access to Core Funding to Support Prevention Activities
           Lack of core funding that is sustainable and reliable for social services, including child
abuse prevention, is the single greatest barrier to the prevention of child abuse in Indian
communities. Current Title XX funding and services do not reach tribes despite their populations
being counted in the state allocation formula.


Create a National Indian Children’s Trust Fund
           Children‘s trust funds create a pool of resources that use public dollars to leverage
private money. They provide an endowment-like resource that can withstand budget fluctuations
and economic cycles. By establishing the trust fund as a public corporation, the administration of
the program could be efficient and effective. Besides raising funds, state children‘s trust funds
have been effective in raising awareness of child abuse and neglect issues with the general
population and policymakers and stimulating creative solutions. Indian children would benefit
greatly from such a resource too.


                       Chapter 6: Child Protection Systems in Indian Country


    1. Establish a comprehensive child protection entitlement program so that every federally
           recognized tribe that desires to operate its own child protection services may do so.
           Such a program should support local child protection services and tribal courts as well as
           inter-jurisdictional agreements, the national development of culturally specific services,
           creation and strengthening of courts, training, technical assistance, evaluation, and
           research. In addition, requirements for states and counties to enter into child protection
           agreements with local tribes should also be included.
    2. Provide funding to support tribal efforts to educate both community members and
           mandatory reporters on all aspects of child abuse and neglect and where to report it.
    3. Clarify cross-jurisdictional issues by clarifying the exclusive jurisdiction of tribal
           governments under Public Law 280 in child protection and require local jurisdictions to
           enter into agreements to clarify protocols for responding to child protection reports.
           Funding support is needed to support the development of these protocol agreements.
    4. Amend the Child Abuse Prevention Treatment Act (CAPTA) to create a discretionary
           grant program specifically for tribes, which fosters, demonstrates, and disseminates
           information about promising practices for addressing child abuse and neglect.
    5. Establish a national tribal technical assistance program in all aspects of code, court,
           procedure development, and operation for the purposes of child protection.
    6. Revise the Bureau of Indian Affairs and Indian Health Services joint memorandum on
           child protection teams to be more responsive to the reality of the diverse systems of child
           protection in Indian Country.

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    7. Establish a national technical assistance and training center for tribal child protection and
           child welfare, similar to what is available for states that could assist tribal agencies as
           they enhance their capacity and practice in child welfare. While the primary focus should
           be on tribal professionals and programs, first responders across all pertinent jurisdictions,
           in all aspects of child abuse investigation involving American Indian/Alaska Native
           children could be part of the target population for training.
    8. Require all cabinet level departments to review grant and formula programs in which
           tribes participate for opportunities to support child protection and to coordinate those
           efforts across departments. Cost sharing pilot projects could be established as a result of
           this effort to bring urgently needed resources to tribal efforts to address child protection.
    9. Develop a mechanism and resources for tribes and the BIA to provide child abuse and
           neglect data to the National Child Abuse and Neglect Data System.


Establishment of a Tribal Child Protection Funding Source at the Federal Level
           A preferred situation is to have tribes operating their own child protection services, which
is happening with more frequency in all parts of the country. Given current funding streams and
strategies in tribal child welfare, many tribes do not have the capacity to engage in this function
even if they want to. In a 1996 (Cross) study in Washington State, 80% of all tribes not operating
child protective services said they would do so if resources allowed them to. As resources
become available, more and more tribes have made a conscience effort to operate their own child
protection services. The result is often a reporting system that tribal members feel more
comfortable with and respond to. Additionally, with tribally run child protection systems,
community ownership of the problem of child abuse and implementing workable solutions is much
easier to promote. Tribal governments need to be able to engage in assessments of their
capacity to exercise their authority in child welfare and work with local or state authorities to
develop shared arrangements. When a tribe is not able to operate child protection services,
state, county, and other agencies involved in reporting and investigation need to be held more
accountable for developing and implementing practices and policies that are responsive to the
needs of Indian children and their communities. This can be accomplished through tougher
requirements for joint planning between these entities, resources to support collaboration, and
evaluation of those efforts.


Supporting Tribal Efforts to Educate Their Communities on Child Abuse and Neglect
           It is essential that local professionals and community members alike know where to file a
report. Due to the complexity of the jurisdictional issues, public education efforts are necessary in
every community to ensure that people know where to get help.
           What can be done to improve reporting? Common to all of these barriers are themes
regarding a lack of understanding, mistrust, and sense of ownership and responsibility for what
happens to children. Lack of understanding often results from information not being available,
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accurate, or presented appropriately. For many years, Indian people have not been in control of
the information that was being broadcast in their communities, including information related to
child abuse and neglect. A reporting system that works is dependent upon people in the
community understanding the effects of child abuse and neglect, what can be done about it, and
why reporting is important to the solution. This information must be relevant to the tribal
community and dissemination should occur through tribally sanctioned pathways. Tribal
community leadership should be in control of these processes to effect the change necessary to
improve reporting.
           Mistrust often develops when relationships with child protection agencies are
characterized by conflict and misunderstanding. Child protection agencies are often viewed with
skepticism, and are viewed with skepticism even more so when the community has been left out
of key decision making processes. State and county agencies, because of the long history of
removing Indian children with bias and preferring non-Indian homes to tribal homes, have a very
difficult task to operate effectively in Indian Country, which, at the very least, requires significant
tribal involvement to succeed.


Cross Jurisdictional Issues in Child Protection (Public Law 280)
           Many tribes exercise their sovereign authority in this area by operating their own child
protection services or by training their law enforcement personnel to engage in child protection
work as is their sovereign right with exclusive jurisdiction. However, many tribes are still
dependent on the state to conduct this service. As described earlier, this will vary depending on
the policy of the tribe, on whether the state is P.L. 280, and on existing intergovernmental
agreements. Out of a diverse and complex set of historic laws and policies, diverse and
sometimes complex child protection systems have emerged. In this environment, it is impossible
to describe child protection as one system in Indian Country. Only local protocols and
agreements and continuous training can ensure that abused or neglected children will be
protected and parents will receive due process.


Promoting Promising Practices that Address Child Abuse and Neglect
           Many child protection situations can and should be handled outside of formal court
procedures. Such services are best provided by the tribes themselves. Approaches such as
family group decision-making, wrap around, systems integration, family support, and temporary
voluntary placements can be and are used to assist in a large proportion of child protection
situations. However, these services are seldom available to tribes without adequate resources
and are seldom applied when state or federal agencies are responsible for child protection.
Children would be more effectively protected if tribes were adequately funded to creatively
design, demonstrate, and disseminate information on new and innovative practices and services.


Assisting Tribal Courts Working in Child Protection
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           It is well documented that tribal courts have a distinct advantage in understanding the
particular cultural patterns, strengths, and needs of Indian families. While some tribal
governments avoid exercising jurisdiction in child protection matters due to the sensitivity and
potential volatility of the issues, most prefer to exercise their authority in child custody matters.
Based on data compiled in the 1986 study (Plantz, et. al) on the status of the Indian Child Welfare
Act, children experienced better permanency outcomes when decisions and services were
provided by tribes. Tribal courts have not earmarked funding to support improvements or
disseminate promising practices, whereas states‘ juvenile courts have. Providing technical
assistance and support to reinforce effective practices and bolster current procedures will directly
benefit the children these courts serve.


Revision of Child Protection Team Protocols by the BIA and IHS
           While the effort to stimulate the development of child protection teams (CPT) in Indian
Country has been important, there are a number of necessary changes needed to improve the
effective operation of these CPTs based upon protocols established by the Bureau of Indian
Affairs (BIA) and Indian Health Services (IHS). National guidelines on child protection teams
(CPTs) suggest that they can only be effective if organized by the agency of statutory authority,
such as a tribal child protection agency. In Indian Country, however, BIA and IHS have taken the
lead in developing CPTs under P.L. 101-630 and a joint memorandum of agreement, even when
tribal child protection services and juvenile courts are the primary agencies identified under a
tribal legal framework. CPTs organized in this way are frequently limited in their effectiveness,
because, without the sanction of the agencies and courts identified in a tribal legal framework,
they have little or no authority to operate. Tribes are under no obligation to provide such teams
with information and may have little interest in doing so. States frequently have their own teams
that function independently of a tribal or federally organized team. Only local protocols and
agreements, operation under the auspice of the agency of statutory authority, and consistent
training will render CPTs uniformly valuable in Indian Country. Currently, CPT capacity is limited
to the good will of the individuals who serve on them to conduct business in such a way as to help
protect children.
           Specifically, these agencies should recognize and empower tribes who exercise authority
over child protection to create, define, and operate CPTs under tribal authority. For those tribes
that do not exercise this authority but who rely on the state or county for child protection, BIA and
IHS should enter into intergovernmental agreements to ensure tribal and federal participation on
local CPTs. In those areas where BIA social services provides child protection, BIA should
ensure that a CPT is functioning and that tribal representatives are in the majority on the team.


Technical Assistance and Training in Child Protection
           Child protection in Indian Country involves a greater variety of agencies and bodies of
law than in any other jurisdiction and involves unique, sensitive cultural issues that are not
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covered in mainstream curricula. To be the most effective and to ensure that what is developed
can contribute to an overall reduction of child abuse in Indian Country, Indian people need to be
involved in the development, implementation, and evaluation of training and technical assistance.
This involvement must include tribes, tribal organizations, and Indian organizations with special
expertise.
           Many issues will affect who performs the initial assessment and investigation. At issue
are the quality of that assessment for the purpose of substantiating the abuse and the quality of
the evidence for both civil and criminal proceedings. If the assessment is done by tribal child
welfare, the worker may have received little, if any, training in child protection evidence collection.
Currently, there is no consistent source of funding available to support such training. If tribal law
enforcement conducts the initial assessment, the officer may not be trained in offering services
other than removing a child from imminent danger. If conducted by state personnel, the worker
may not be trained in cross-cultural assessment and may mistake cultural patterns for neglect.
Where criminal actions rise to the level of a federal crime, federal officers may take months
before they respond, which raises the risk for further abuse, neglect, death, and inappropriate
placement for Indian children.
           Training curricula and technical assistance need to cover all aspects of child protection in
Indian Country and need to address the unique cultural issues involved in this activity as well as
all the potential policies and agencies that may have a role. Child protection curricula should
include skills and knowledge development in the following:
    1. Understanding historical issues that have contributed to and helped prevent child abuse
           and neglect in Indian communities
    2. Intake procedures
    3. Basic investigative techniques
    4. Child and family interviewing
    5. Risk assessment for abuse and neglect
    6. Decision making practice
    7. Evidence collection
    8. Multi-disciplinary and child protection team operation
    9. Court preparation and involvement, including expert witness testimony
    10. Planning and implementing intervention strategies
    11. Basic case management including record documentation
    12. Understanding abuse and neglect, community, cultural identity, and lifestyle issues for
           both workers and clients and how these interface in child protection work


           Personnel involved in the trainings should include tribal social workers, members of tribal
multi-disciplinary teams, tribal law enforcement and tribal courts, as well as other agencies critical
to child protection activities involving Indian children on tribal lands. Additional training could be

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implemented with other outside agencies after core tribal child abuse investigation team members
are properly trained.


Coordinating Federal Resources
           Existing programs in the Departments of Interior, Justice, Education, and Housing and
Urban Development have some function the prevention of child abuse in Indian Country.
However, there is no mechanism to coordinate or consolidate these program resources into a
meaningful and focused effort. Pooling small, diverse funding resources into a shared cost
arrangement could allow immediate attention to this issue while a more comprehensive approach
to increasing tribal capacity to address this issue is developed.


Data Collection and Tracking
           Currently, there is no national data reporting system regarding Indian children served in
tribal child protection systems or the BIA, and thus little reliable data is available to document or
tract the seriousness or proportions of the problem. This hampers efforts to understand this
problem and to develop corrective policies and programs. It is recommended that the Child
Abuse Prevention and Treatment Act include provisions requiring the collection and tracking of
child abuse data in Indian Country. This program should fund tribes to collect and report data
regarding child abuse and require the BIA to report to tribes and the National Child Abuse and
Neglect Data System any data in communities where they are the service providers. In addition,
regular reporting to Congress should be required that describes progress on data collection
efforts and summaries of the data collected under this program.


                                   Chapter 7: Child Sexual Abuse


    1. Remove policy and interjurisdictional barriers to investigation and prosecution of
           offenders.
    2. Improve access to treatment for sexual abuse victims.
    3. Establish forensic training programs for investigators and interviewers.
    4. Establish a tribal court improvement project.
    5. Expand the role of the Office of Victims of Crime regarding child sexual abuse in Indian
           Country.
    6. Expand Children‘s Justice Act programming in Indian Country.
    7. Develop demonstration programs on prevention of sexual abuse in Indian Country.


Federal Reform for Child Protections
           Congress should engage tribal leaders, state officials and federal law enforcement
officials in a dialogue and consultation process to formulate and enact comprehensive reform in

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federal laws and policies that impede the investigation and prosecution of child sexual abuse in
Indian Country.
           The complexity of federal law regarding major crimes, Indian civil rights, jurisdiction over
non-Indians, or Indians of other tribes creates a situation in which prosecution of crimes against
children is so difficult that it seldom happens. This means that offenders often walk the streets
without scrutiny and continue to have access to children. Children continue to be exposed to
known pedophiles. Federal rules of evidence have not kept pace with the changes that have
occurred in state courts. Because prosecutions of perpetrators who sexually abuse Indian
children on tribal lands may occur in federal court, it would be beneficial to examine the federal
rules of evidence carefully and see if changes are needed to improve the chances of successful
prosecution. These issues, while discussed in other chapters, are recommended for further study
and reform.
           Given the complex nature of the jurisdiction issues, the number of possible players and
the high potential for cases being lost or delayed due to jurisdiction barriers it is essential to have
effective mechanisms to minimize the barriers. Several successful examples of inter-
governmental agreements exist as models. Successful multi-disciplinary teams have been
demonstrated in various tribal locations. It is recommended that a program be established that
supports the planning, development, and implementation of inter-governmental/interagency
agreements and protocols and multi-disciplinary teams in Indian Country including the
documentation of effective models; technical assistance to tribes; and incentives to states,
counties, and federal agencies for development of such agreements. Further, it is recommended
that federal, state, and county law enforcement and child welfare agencies be mandated, as a
condition of receiving federal funds, to enter such agreements with tribes where applicable.


Treatment for Victims
           Being the victim of child sexual abuse is highly correlated with behavior disorders, poor
school performance, depression, and suicide. When treatment is provided, survivors have a
good chance of recovery. Untreated, victims risk further abuse and long term mental, behavioral
and physical health problems. Indian Health Service has run successful treatment demonstration
projects. Non-Indian treatment programs have been shown to be effective. The current barrier to
effective treatment is the lack of funding. It is recommended that treatment for American
Indian/Alaska Native victims of child sexual abuse be universally available. Medicaid, IHS
behavioral health, Indian Child Protection and Family Violence Prevention Act grants, and crime
victims funding are all potential sources that should be brought to bear in this effort. It is further
recommended that Congress conduct a comprehensive review of authorizing language and
related appropriations to ensure access to treatment for tribal children.


Training Programs for Forensic Interviewing

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           As described above, one of the greatest barriers to prosecution of offenders is the lack of
qualified investigators and interviewers. Training materials and trainers are available, and
effective methods have been demonstrated in both Indian and non-Indian settings. It is
recommended that a comprehensive training program for tribal child welfare and law enforcement
personnel as well as those personnel that serve tribal children such as BIA social services and
law enforcement personnel be established.

Court Improvement Programs
           Current court improvement programs funded under the Title IV-B, Subpart 2, Promoting
Safe and Stable Families, are having positive impact across the nation for victims of child sexual
abuse. In very few cases are tribes asked to participate in these projects. It is recommended
that the federal court improvement program be expanded beyond its current scope to recognize
that the development of effective tribal courts is essential to child protection and the prosecution
of child sexual abuse in Indian Country.


Expansion of the Role of the Office of Victims of Crime (OVC)
           Currently, one of the few sources of funding for treatment of child sexual abuse is OVC
funding. OVC funding is currently under-utilized, and children who would be eligible may not be
taking advantage of the program due to lack of awareness or lack of access to treatment
resources. It is recommended that OVC expand this program in Indian Country and offer
extensive social marketing, information, and technical assistance to maximize tribal access to the
program.


Expansion of the Children’s Justice Act (CJA) Program
           Currently the CJA program funds approximately 39 tribal grantees to support effective
responses to child abuse and, specifically, child sexual abuse. Expansion of this program and
the related technical assistance would be a short-term measure with high-yield returns. This
program is proven and well known among tribes with much greater interest than available
funding. It is recommended that the tribal CJA grant program be expanded so that every eligible
tribe could receive funding.


Prevention Demonstration Projects
           Because there has been virtually no prevention work in Indian communities with regard to
child sexual abuse, little is know about what is most effective. It is recommended that
discretionary grants programs be targeted to demonstrate and test effective prevention strategies
in Indian communities and that the findings of those projects be nationally disseminated for use
by tribes.


                                   Chapter 8: Family Preservation
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    1. Fully implement the Indian Child Welfare Act in state child custody proceedings.
    2. Develop tribal codes.
    3. More fully utilize cultural adaptations of mainstream clinical tools and tribal elders in work
           with American Indian/Alaska Native families.
    4. Provide more funding support for tribal family preservation programs.
    5. Provide incentives to improve culturally competent practice and knowledge with
           mainstream service providers that serve American Indian/Alaska Native families.
    6. Address structural issues that are the root causes of many American Indian/Alaska
           Native family problems, such a poverty, oppression, and effects of colonization.


Full Implementation of the Indian Child Welfare Act
           First and foremost, culturally competent family preservation services must be developed
within a framework of internal and external sovereignty. A number of recommendations are
offered to begin to establish culturally competent family preservation services for American
Indian/Alaska Native families and communities. First, promote and require full implementation of
ICWA‘s mandates (including not only the ―letter‖ of the law but also the ―spirit‖ of the law). It is a
sad fact that, in many states, ICWA is still neither understood nor followed. Simple protocols such
as asking every child and family if they have American Indian/Alaska Native ancestry is still not
occurring. Compliance must be a top down approach where state administrators routinely and
collaboratively work with tribes to promote more culturally congruent practices to ensure ICWA
compliance.


Developing Tribal Codes
           The expression of tribal cultural practice and policy is essential to the development of
effective state practice and policy. Tribes that have accomplished this work are able to
demonstrate and advocate more effectively with states the best methods for working successfully
with American Indian/Alaska Native families. Here, states and tribes have the opportunity to work
together to ensure not only that the letter of the law is fulfilled regarding expectations for services
to American Indian/Alaska Native families but also that the spirit of the law (as tribally defined) is
fulfilled. This requires that tribes develop codes and program policies that reflect these values and
cultures.


Cultural Adaptations of Mainstream Clinical Tools and Working with Tribal Elders
           As noted in the Clinical Application section, utilizing cultural adaptations to mainstream
clinical tools such as genograms, wraparounds, talking circles, kinship care, healing ceremonies,
and traditional adoptions can provide appropriate frameworks for helping families. Additionally,
involving tribal elders and extended family in the use of specific cultural approaches such as
storytelling, sweat lodges, feasts, and use of Native languages can prove invaluable to successful
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intervention. These methods promote healing and development of positive cultural identity and
should be considered the cornerstones of family preservation.


Providing More Funding Support for Tribal Family Preservation Services
           There is a need for federal and state officials to provide more funding support for family
preservation programs, particularly tribal programs, that serve American Indian/Alaska Native
families. Family preservation programs that utilize culture offer substantial savings over traditional
foster care or residential programs and can yield very positive outcomes that address the root
causes that bring children into the child welfare system. Recent figures show that, during a
similar period, $16 billion was spent nationally on foster care, whereas only $1 billion was spent
on family preservation (McRoy, 2000).


Provide Incentives to Improve Culturally Competent Practice and Knowledge with
Mainstream Service Providers
           Weaver (2003) suggests four additional culturally competent service provisions for
mainstream service providers: 1) an understanding of the diversity among and within American
Indian/Alaska Native groups; 2) an understanding and appreciation of the history of American
Indian/Alaska Native people; 3) knowledge of a given tribe‘s unique culture; and 4) knowledge
and understanding of the contemporary realities of Native people. These service provisions are
necessary for all providers of services to American Indian/Alaska Native children and families in
order to deliver effective services that will address the fundamental issues that bring these
families to the attention of the child welfare system.


Address Structural Issues that Are the Root Causes of Many American Indian/Alaska
Native Family Problems
           In addition to practice issues and funding streams, it is also incumbent upon American
society to understand that addressing structural issues such as ―poverty, oppression, and
colonization is the only way to proactively alleviate the problems that are the root causes of many
family problems‖ (Weaver, 2003). Only a combination of culturally competent family preservation
emphasis, adequate funding and resources, and political backing to redress historical trauma and
societal injustices will result in the healing and harmony necessary to ensure the well-being of
American Indian/Alaska Native families and communities.


                              Chapter 9: Foster Care and Permanency


    1. Implement comprehensive strategies to improve services for American Indian/Alaska
           Native families and children with tribal and mainstream service providers.
    2. Support and increase the administrative capacity of tribes.
    3. Improve support available to kinship providers.
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    4. Promote effective models of permanency planning with American Indian/Alaska Native
           children.


Implement Comprehensive Strategies to Improve Services for American Indian/Alaska
Native Families and Children
           Family preservation and permanency incorporate a philosophic stance and promote
novel program structures that have the potential to broaden and strengthen services to American
Indians/Alaska Natives. Mannes (1993, 1990) makes six distinctive proposals that social delivery
systems need to heed in order to implement effective family preservation and permanency
programs for American Indian/Alaska Native communities. First, workers and administrators have
to be educated so that support for family preservation and culturally appropriate permanency
outcomes can be obtained (i.e., training). Second, coordination among the various service
agencies or providers must be worked out and maintained (i.e., collaboration). Third, the types of
families who are to be served by the program have to be agreed upon and the decision should be
made clear to all involved parties. Fourth, a basis for long-term funding has to be established.
Fifth, standard program and service development activities, including setting goals and
formalizing procedures and practices, have to be carefully thought through and established. Sixth,
Native staff members must be hired and trained so they have the knowledge and expertise to
provide family preservation services. Additionally, tribal involvement in all six areas will ensure
that culturally appropriate definitions and services are contained in each area.
           Mannes believes that preserving the family has the potential to be a better path to cultural
preservation and permanency than out-of-home, culturally appropriate placements. In order for
family preservation efforts to be effective, federal agencies must support new federal/tribal and
state/tribal intergovernmental funding arrangements that promote permanency. They also must
encourage and assist tribal communities to use existing resources more efficiently (e.g.,
encourage tribal governments to increasingly blend or pool funds and advocate for the expansion
of culturally appropriate programs), integrate data information across family and children‘s
services, and coordinate application protocols and eligibility criteria. In sum, federal agencies
must help empower tribal communities to allocate resources in ways that are more consistent
with their cultural values (Brown & Limb, 2003).
           With regard to tribal capacity, tribes must also develop their own responses to the needs
of their families and children, which include a wide range of supportive services, supplemental
services, and substitute care for families and their children. While many tribes provide most of the
programs and/or services themselves, other tribes share various responsibilities with the state(s)
or counties around them. NICWA (1995) provided a brief description of the following three broad
types of services:
    1. Supportive services: Services considered ―supportive‖ help parents to maintain or
           improve their ability to parent. Examples include early detection or prevention of abuse
           and/or neglect, parent training, financial support, and counseling. Services are oftentimes
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           delivered through schools, recreation programs, Head Start, or other tribal, private, or
           public agencies. Supportive services focus on the family and the well-being of children.
    2. Supplemental services: Services considered ―supplemental‖ are provided when a family
           needs more than just supportive services to meet the needs of the children and to stay
           together as a family unit. Examples include homemaker services, day care, some
           protective services, health and mental health referral or services, and family preservation
           services. Supplemental services are offered as a last resort to keep the family together
           as unit.
    3. Substitute care: Services considered ―substitute‖ are utilized when one or both parents
           are unable to fulfill their child-caring roles. Examples include temporary or permanent
           substitute care, such as relative (kinship) care, foster care, group or institutional
           placement, and adoption. Although the overall goal continues to be family preservation,
           permanency planning begins to account for the long-term needs of the Native child and
           family (NICWA, 1995).


           What services tribes can actually provide is often limited by a lack of resources.
Currently, tribal governments administer a variety of family and children‘s programs through
various funding structures. In general, ―this array of federal funding sources for tribal programs
channeled money to tribal governments through two conduits: 1) direct funding to tribes (self-
determination contracts, block grants, and special initiative grants) and 2) indirect funding, in
which funds are channeled to states and ‗passed through‘ to tribal governments via tribal/state
agreements‖ (Brown & Limb, 2003).
           Until recently, tribal governments were not eligible for federal funding to operate
important federal entitlement programs necessary to provide the basic necessities for their
families and children. Therefore, American Indian/Alaska Native children did not receive the same
federal benefits as non-Native children (Brown et al., 2000). To this day, confusion exists
regarding the rights of American Indian/Alaska Native children on reservations to receive federal
entitlements. Jones (1999) notes that


           In many states, Indian children have had to adjudicate their rights to such
           entitlements as food stamps, AFDC, medical assistance programs, foster care
           subsidies, child support enforcement services, and education benefits. These
           court battles were not over need, as Indian children are the most impoverished
           class of children in the country. Rather, they were jurisdictional turf battles borne
           of congressional neglect of clear standards for eligibility for Indian children
           (Jones, 1999).


           The largest resource for child welfare funding comes through the Social Security Act
programs, which include Title IV-E Foster Care and Adoption Assistance and Title IV-B Child
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Welfare Services. Title IV-E authorizes funding for foster care and adoption assistance and is
―intended to operate in consort (with IV-B) to help prevent the need for out-of-home placement of
children and, in cases where such placement is necessary, to provide protections and permanent
placement for the children involved‖ (U.S. House of Representatives, 1998).
           The Title IV-E Foster Care and Adoption Assistance Program is a permanently
authorized entitlement that provides federal matching funds for foster care and adoption services
for both economically disadvantaged children as well as children with special needs. Title IV-E
provides funds for the following: 1) monthly maintenance payments for eligible children in foster
care; 2) monthly assistance payments for special-needs children in adoptive placements; 3)
administration costs associated with placement of eligible children; and 4) training costs for
personnel administering the programs and for foster and adoptive parents (Brown et al., in press).
Although the Title IV-E program was intended by Congress to serve all eligible children, American
Indian/Alaska Native children under tribal jurisdiction do not enjoy the same entitlement to IV-E as
other U.S. children. Because Title IV-E foster care and adoption programs are statutorily targeted
to state agencies, American Indian/Alaska Native tribes can only gain access to and administer
IV-E funds by entering into agreements with their respective states (Cross et al., 2000; U.S.
Department of Health and Human Services, 2000). In commenting on restricted tribal access to
this funding stream, Cross et al. (2000) state:
           [Title IV-E programs] provide billions of dollars of funding which can be used to support
child welfare services. They are designed to promote the well-being of all children in the United
States; however, most of these programs were designed with little or no consideration given to
issues of tribal culture, service delivery systems, or the government-to-government relationship
that exists between tribes and the state and federal governments.
           Ambiguous relationships between tribes and states have severely hampered tribes‘
abilities to fully implement services for children. The failure to recognize tribal governments as
legitimate governments, capable of providing services to their citizens, has led to tribal
dependence on state governments in order to access Title IV-E foster care and adoption
assistance funding. Thus, tribal access to Title IV-E can be problematic considering both the
administrative requirements of the program and the mandate that tribes must enter into
agreements with their respective states to receive funding. Today, only 15 states and 76 tribal
governments have Title IV-E agreements in place (Brown et al., in press). Therefore, until
Title IV-E direct funding provisions are passed by Congress, tribes must continue to enter into
agreements with their respective states to access these funds.


Supporting the Administrative Capacity of Tribes
           Changes in federal policy, advocacy of national Indian organizations and, in some cases,
improved resource bases, have improved tribal communities‘ ability to promote permanent
solutions both in terms of program development and in saving its most precious resource—its
children. However, most tribal communities‘ capacity to establish and to run their own social
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service programs remain limited. The federal government, states and tribes must plan to counter
the poverty, limited educational and employment opportunities, poor physical infrastructure, lack
of family and children‘s services, and geographic isolation and somehow determine which social
and economic investments are most likely to ensure the development of permanent, sustainable
tribal communities (Brown & Limb, 2003).
           Ideally, state leaders and program administrators should engage tribal community
leaders in structured and thoughtful speculation about the future—that is, in long-range political,
social, and economic strategic planning. In too many cases, however, state and tribal
collaborations revert to the traditional short-term, problem-focused management and planning
model employed in the past by federal programs, which typically has not been effective in
assisting tribal governments in purposeful, long-range interventions.
           Brown and Limb (2003) state that concerns still exist regarding the adequacy and
relevance of conventional planning and problem-centered processes for social welfare program
development. Researchers have suggested that the approach typically used in tribal/state
collaborative planning is too problem to promote effective community-based social service
delivery systems for Native communities. Instead, it is recommended that planning should occur
first from a ―strengths perspective.‖ This capacity-based approach would first focus on
understanding a community‘s assets, capacities, and abilities, and second on the attempt to
connect these strengths in ways that multiply their power and effectiveness (Kretzmann &
McKnight, 1993). Lippitt (1998) augments this approach by introducing a whole-systems way of
thinking that replaces the focus on problems with a focus on an exciting, successful future state.
With the continued emphasis on devolution, it is critical that federal, state, and tribal leaders
collaborate on planning processes that incorporate whole-systems thinking to meet community
needs and future outcomes, and choose a strengths-based path toward the future.
           Philosophically, the rights of parents and tribal communities to raise their children
according to their own norms and customs is at the heart of any planning stage. At its core, the
promotion of permanency and a sense of belonging is the sustainable future of Native
communities. If others are allowed to decide the future of Native communities—by planning for
them and developing and implementing programs for them—American Indian/Alaska Native
tribes and individuals are not really free (Brown & Limb, 2003). The federal government and
states must therefore recognize sovereignty, the capacity of tribal communities to determine what
their future will be, and then directly involve tribes in the successful achievement of that future.


Improve Support Available to Kinship Providers
           As noted in the beginning of this chapter, extended family and kin are integral parts of the
support network for healthy development of American Indian/Alaska Native children. In federal
policy, kinship care was first addressed in ICWA, which made explicit allowance for extended
family placements. More recently, kinship care under ASFA has been recognized for the first time
as a legitimate solution to permanency. While kinship care is gaining more support in child
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welfare circles, it presents a number of challenges. Unlike traditional foster parents, Native
kinship providers typically have not been licensed as foster parents or attended training on what it
means to be a foster parent before receiving a foster child. While state policies indicate that kin
are generally eligible to receive the same services as non-kin foster parents, research has clearly
shown that in practice, kin foster parents and the children in their care receive fewer services and
less payment. Kin are typically offered fewer services, request fewer services, and receive fewer
of the services they request (Green, 2003). Depending upon the state and the specific child and
family circumstances, there may be a variety of financial disincentives, as well as cultural
considerations, for Native kin to adopt or take guardianship. Some kin are not eligible for
subsidized adoption or guardianship and may receive greater support if they choose long-term
foster care or guardianship instead of adoption. In some states, kin are prohibited from receiving
an adoption subsidy, and do not qualify for subsidized guardianship. Green (2003) states that ―it
appears nonsensical to deny ongoing financial assistance to relatives who cannot meet
subsidized adoption or guardianship requirements, yet still allow these same kin to permanently
care for children. If kin caregivers are acceptable adoptive parents, they should be acceptable
subsidized adoptive parents.‖
           Therefore, it is recommended that kin be offered the same payments and services
afforded to traditional foster parents. For many Native families, kinship care is done informally
and is viewed as natural commitment. The role of primary prevention should be to enhance family
strengths by identifying extended kin support networks, natural leadership, and traditional
helpers. States need to work with tribes to support these families and to help them become
eligible for needed payments and services.


Promote Effective Models of Permanency Planning with American Indian/Alaska Native
Children
           While the concept of permanency planning is still a rather new development in the field of
child welfare, the concept of belonging, the embodiment of permanent planning, is central to
American Indian/Alaska Native culture. Permanent planning focuses on providing children with a
sense of connectedness or belonging that lasts over an extended period of time. It is not, nor
should it be thought of as, a separate or even a concurrent child welfare goal. Rather, it is a
critical concept that must guide and influence the delivery of all child welfare services. It is the
basis for programs that maintain families and enable children to remain within their own
communities, as well as programs that provide permanent family resources when a child‘s
parents are not able to provide adequate care for him or her (NICWA, 1996).
           NICWA (1996) offers eight assumptions that underlie and promote effective permanency
planning: 1) The primary right and responsibility of child-rearing lies with the parent and/or
extended family; 2) Permanence can be said to exist only if the Native child perceives security
and a sense of belonging to a family, extended family, clan, and tribe; 3) The best permanent
plan for a Native child is usually to grow up in his/her own family or extended family; 4) Native
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culture respects the thoughts, feelings, and rights to self-determination of Native children; 5)
Native parents have the right to culturally sensitive services that enable them to be a permanent
resource for their child; 6) Native child welfare practice recognizes that a sense of permanence
for Native children involves extended family and tribal ties, as well as ties with parents; 7)
Permanency planning in Native child welfare practice recognizes the wide variety of family and
extended family relationships that exist for Native people, as influenced by tribal identity, degree
of assimilation, and other factors; and 8) A sense of permanence enhances a child‘s ability to
form a healthy relationship, a clear identity, and satisfying adjustments to society. Finally, in
situations where an alternative permanency plan must be considered, the extended family must
be given primary consideration. Even when the extended family is unable to provide direct care
on a permanent basis, they should be considered in the planning process. Therefore, it is
recommended that culturally appropriate permanency planning be incorporated in all Native child
welfare matters.


                                   Chapter 10: Jurisdictional Issues

    1. Strengthen tribal capacity to provide the full range of human and judicial services to its
           tribal children and families and other Indian families living on the tribe‘s reservation.
    2. Fund tribal judiciaries, particularly those in P.L. 280 states that have been under-funded
           in the past.
    3. Fully fund the Indian Child Protection and Family Violence Prevention Act.
    4. Enact legislation making tribes eligible for direct funding under Title IV-E of the Social
                                                     th
           Security Act (S. 331/H.R. 443 in the 108 Congress).
    5. Encourage intergovernmental agreements between tribal and state child welfare
           agencies, and tribal, state, and federal law enforcement agencies, and provide funding
           for same.
    6. Provide training for state court judges and agencies on the Indian Child Welfare Act and,
           more generally, the underlying principles of federal Indian law.
    7. Make available federal funding to compile tribal codes that adopt tribal law and custom
           definitions that should be applied by state courts as a matter of federal law pursuant to
           the Indian Child Welfare Act.
    8. Enact legislation narrowing the good cause exception to the transfer of jurisdiction to
           tribal courts section in the Indian Child Welfare Act to ensure that tribes have
           presumptive jurisdiction over off-reservation cases as contemplated in the Holyfield case.
    9. Enact legislation disavowing the existing Indian family exception so that the provisions of
           the Indian Child Welfare Act will be applicable to all Indian children involved in child
           custody proceedings.
    10. Enact legislation recognizing tribal jurisdiction over non-Indians who criminally abuse
           Indian children in Indian Country.
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    11. Ensure through legislation, tribal-state agreements, and/or Justice Department civil rights
           litigation the right of Indian children to have non-discriminatory access to state services
           regardless of whether they fall within the jurisdiction of the state or the tribe.
    12. Regularly review state systems to ensure that they are adequately complying with the
           Indian Child Welfare Act.
    13. Amend the Indian Child Welfare Act to include some of the improvements that can be
           found in such state laws as the Iowa Indian Child Welfare Act.
                                    Chapter 11: Services Integration


    1. Provide direct funding to tribes from the Title XX Social Services block grant, Title XIX
           Medicaid, and Title IV-E Foster Care and Adoption Assistance of the Social Security Act
           and Mental Health Services block grants
    2. Create a discretionary grant program under the Child Abuse Prevention Treatment Act
           (CAPTA) specifically for tribes, which fosters, demonstrates, and disseminates
           information about promising practices for addressing child abuse and neglect and
           specifically funds research and demonstration of integrated service models in tribal child
           welfare.
    3. Require all federal agencies to review grant and formula programs in which tribes
           participate for opportunities to support integrated service models in child protection and to
           coordinate those efforts across departments.


Support Direct Tribal Access to Social Security Act Programs and Block Grants
           Lack of core funding that is sustainable and reliable for social services, including child
abuse prevention, is the single greatest barrier to the prevention of or intervention into child
abuse in American Indian/Alaska Native communities. Current Social Security and block grant
funding does not reach tribes despite their populations being counted in the state allocation
formula. In light of the positive findings to date regarding service integration, more support for
holistic systems of care service models for child welfare in American Indian/Alaska Native
communities should occur. The major drawback constraining these models so far has been the
ability of tribes to sustain them. Without access to base funding such as Title XX, Title IV-E, Title
XIX, Mental Health Service block grants and some new form of child protection entitlement for
American Indian/Alaska Native children, little is likely to change. Congress needs to take broad
and bold action to open funding streams, available to all other children in the nation, to American
Indian/Alaska Native children and to make that funding flexible enough for tribes to integrate
services.


Tribal Program that Demonstrates and Disseminates Information about Promising
Practices and Funds Research and Demonstration of Integrated Service Models in Tribal
Child Welfare
R13227-0                                             319
           Outcomes for children served to date in integrated models have been strong. Evidence
suggests that families have changed from resisting services to embracing services. American
Indian/Alaska Native scholars attribute the success of this model, in part, with its congruence with
Indian culture and its holistic view of human well-being as a matter of balance and harmony. The
strengths of American Indian/Alaska Native culture, such as the role of family and kin, the role of
spirituality, and traditional approaches to healing, have all been critical parts of the demonstration
projects. Larger and more comprehensive demonstrations are needed.


Require All Federal Agencies to Review Grant and Formula Programs in which Tribes
Participate for Opportunities to Support Integrated Service Models in Child Protection and
to Coordinate those Efforts Across Departments
           Current programs in HHS, Interior, Justice, Education, and HUD have some function the
prevention of or intervention in child abuse in Indian Country; however, there is no mechanism to
coordinate or consolidate these program resources into a meaningful and focused effort. Pooling
small, diverse funding resources into a shared cost arrangement could allow the further testing of
service integration models.




i
   Worcester v. The State of Georgia, 31 U.S. (6 Pet.) 515, 559 (1832).
ii
    United States v. Mazurie, 419 U.S. 544, 557 (1975).
iii                                                                                   th
    National Labor Relations Board v. Pueblo of San Juan, 276 F.3d 1186, 1192 (10 Cir. 2002) (citations
            omitted).
iv
    See, e.g., South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998).
v
    Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208-209 (1978).
vi
    Seminole Nation v. United States, 316 U.S. 286, 296-297 (1942).
vii
     See, e.g., Indian Self-Determination and Education Assistance Act, 25 U.S.C. 450 et seq.; Indian Tribal
            Justice Act, 25 U.S.C. 3601 et seq.
viii
     United States v. Quiver, 241 U.S. 602, 603-604 (1916).
ix
    Fisher v. District Court, 424 U.S. 382, 387-389 (1976); see also Raymond v. Raymond, 83 F. 721 (8th Cir.
            1897) and In re Lelah-puc-ka-chee, 98 F. 429 (N.D. Iowa, 1899).
x
    See United States v. Wheeler, 455 U.S. 191 (1978).
xi
    25 U.S.C. 1301 et seq.
xii
     25 U.S.C. 1302(7).
xiii
     18 U.S.C. 1162; 28 U.S.C. 1360.
xiv
     18 U.S.C. 1151.
xv
     Bryan v. Itasca County, 426 U.S. 373 (1976).
xvi
      See endnote 153. See also, e.g., Doe v. Mann, 285 F.Supp.2d 1229 (N.D. Cal. 2003); Native Village of
                                                                      th
            Venetie I.R.A. Council v. State of Alaska, 944 F.2d 548 (9 Cir. 1991).
xvii
      18 U.S.C. 1153.
xviii
      18 U.S.C. 1152.
xix
     Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) (no tribal criminal jurisdiction over non-Indians);
            United States v. McBratney, 104 U.S. 621 (1881) (exclusive state jurisdiction over crimes where
            non-Indians are both the perpetrator and victim).
xx
     25 U.S.C. 1901 et seq.

R13227-0                                              320
xxi
     Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1988).
xxii
      Id.
xxiii
        Hearing on S. 1214 before the Select Committee on Indian Affairs, United States Senate, 95th Cong., 1st
              Sess. (August 4, 1977), at 539 (hereinafter ―Senate 1977 Hearing‖).
xxiv
       Holyfield, supra, 490 U.S. at 33.
xxv
      Senate 1977 Hearing, supra, at 539.
xxvi
       Id. at 537-603.
xxvii
        ―Indian Child Welfare Program‖, Hearings before the Subcommittee on Indian Affairs, Committee on
                                                                    rd
              Interior and Insular Affairs, United States Senate, 93 Cong., 2d. Sess. (April 8-9, 1974) at 3.
xxviii
        Id. at 2.
xxix
       See Holyfield, supra, 490 U.S. at 49-50.
xxx
       Id. at 50 quoting from findings of Congress' American Indian Policy Review Commission reprinted in
              United States Senate Report 597, 95th Cong., 1st Sess. (1977) at 52.
xxxi
        25 U.S.C. 1901(3).
xxxii
        Holyfield, supra. 490 U.S. at 34, n.3 (citations omitted).
xxxiii
         Matter of M.E.M., 635 P.2d 1313, 1316 (Mont. 1981).
xxxiv
         Hearings on S. 1214 before the Subcommittee on Indian Affairs and Public Lands of the House
                                                               th
              Committee on Interior and Insular Affairs, 95 Cong., 2d. Sess. (1978) at 193.
xxxv
        Holyfield, supra, 490 U.S. at 49-50.
xxxvi
         Senate Report 95-597, supra, at 43.
xxxvii
         Senate 1977 Hearing, supra, at 114.
xxxviii
          Holyfield, supra, 490 U.S. at 33, n.1.
xxxix
         25 U.S.C. 1901(5).
xl                            th
     House Report 1386, 95 Cong., 2nd Sess. (1978) at 19, cited in Holyfield, supra, 490 U.S. at 45, n. 18.
xli
     Holyfield, supra, 490 U.S. at 45, n.18.
xlii
      124 Cong.Rec. H12849 (Oct. 14, 1978).
xliii
       House Report 95-1386, supra, at 10-12.
xliv
       Holyfield, supra, 490 U.S. at 45, n. 17.
xlv
      Id. at 37.
xlvi
       25 U.S.C. 1911(a).
xlvii
        25 U.S.C. 1911(b).
xlviii
        25 U.S.C. 1911(c).
xlix
       25 U.S.C. 1911(d).
l
   25 U.S.C. 1912(a).
li
    25 U.S.C. 1914.
lii
     25 U.S.C. 1915(c).
liii
     25 U.S.C. 1912(e) and (f).
liv
     25 U.S.C. 1915(a).
lv
     25 U.S.C. 1915(b).
lvi
     25 U.S.C. 1915(d).
lvii
      25 U.S.C. 1912(d) and 1922.
lviii
       25 U.S.C. 1913.
lix
     25 U.S.C. 1912(c), 1915(e), 1917 and 1951(b).
lx
     25 U.S.C. 1919.
lxi
     O.S. sec. 10-40.1 to 10-40.9.
lxii
      Iowa Code Chapter 232B (Supp. 2003).
lxiii
       25 U.S.C. 3201 et seq.
lxiv
       25 U.S.C. 3203.
lxv
      25 U.S.C. 3204.
lxvi
       25 U.S.C. 3206(a) and (b).
lxvii
        25 U.S.C. 3207.
lxviii
        25 U.S.C. 3209(a) and (c).
lxix
       25 U.S.C. 3209(g).
lxx
      42 U.S.C. 620 et seq. and 42 U.S.C. 670 et seq., respectively.
lxxi
       45 C.F.R. Part 1357.
lxxii
        42 U.S.C. 628 and 45 C.F.R. 1357.40.
lxxiii
        42 U.S.C. 629 et seq.
lxxiv
        42 U.S.C. 629c(a) and 45 C.F.R. 1357.50.

R13227-0                                               321
lxxv
      42 U.S.C. 670 et seq.
lxxvi
       42 U.S.C. 671(16); 42 U.S.C. 675(1) and (5).
lxxvii
        42 U.S.C. 675(5)(B).
lxxviii
        42 U.S.C. 671(15)(B).
lxxix
       P.L. 105-89.
lxxx
      See, e.g., 42 U.S.C. 622(b)(10)(B); 42 U.S.C. 629b(a)(9); 42 U.S.C. 671(a)(15); 42 U.S.C. 675(5)(E).
lxxxi
       42 U.S.C. 675(5)(C).
lxxxii
        42 U.S.C. 675(a)(15).
lxxxiii
        42 U.S.C. 675(a)(15)(F).
lxxxiv
        42 U.S.C. 673b.
lxxxv
        42 U.S.C. 675(5)(E).
lxxxvi
        42 U.S.C. 622(11).
lxxxvii
         42 U.S.C. 1996b(c)(1) and 42 U.S.C. 671(a)(18).
lxxxviii
         P.L. 103-82, later amended by P.L. 104-188 (the section of that law is entitled ―Removal of Barriers to
             Interethnic Adoption‖).
lxxxix
        42 U.S.C. 1996b(c)(3) and 42 U.S.C. 674(d)(4).
xc
    42 U.S.C. 622(b)(9).
xci
     42 U.S.C. 671(a)(23).
xcii
      42 U.S.C. 5101 et seq.
xciii
      42 U.S.C. 5104.
xciv
        42 U.S.C. 5106a.
xcv
      109 U.S. 556 (1883).
xcvi
      Id. at 571-572
xcvii
       24 Stat. 388, as amended.
xcviii
       County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251, 254
             (1992).
xcix
      25 U.S.C. 461 et seq.
c
   See, e.g., Grand Ronde Restoration Act, 25 U.S.C. 713 et seq.; Menominee Restoration Act, P.L. 93-197;
             Klamath Indian Tribe Restoration Act, P.L. 99-398; Auburn Indian Restoration Act, P.L. 103-434.
ci
    25 U.S.C. 450 et seq.
cii
     25 U.S.C. 450aa et seq.
ciii
     25 U.S.C. 13 et seq.
civ
     43 U.S.C. 1601 et seq.
cv
     Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998).
cvi
     See, e.g., John v. Baker, 982 P.2d 738 (Alaska, 1999). Alaska‘s issues are particularly complex as courts
             have had to deal with issues of continuing tribal sovereignty after the enactment of the Alaska
             Native Claims Settlement Act,       whether Indian Country exists in Alaska and the impact of P.L.
             280 (Jaeger, 2002). A complete analysis of the case law is beyond the scope of this chapter,
             except to note that recent Alaska Supreme Court cases such as John v. Baker and In the Matter of
             C.R.H., see endnote 16, have increasingly recognized the right of Alaska Native villages to
             exercise sovereignty in family law matters.
cvii
      30 Stat. 495, 504 (1898).
cviii
      25 U.S.C. 501 et seq.
cix
     See, e.g., Harjo v. Kleppe, 420 F.Supp. 1110, 1130-1140 (D.D.C. 1976), affd. sub. nom. Harjo v.
             Andrews, 581 F.2d 949 (D.C. Cir. 1978).
cx
     See, e.g., Oklahoma Tax Comm‘n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991).
cxi
     Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 14-15 (1987).
cxii
      25 U.S.C. 3613, 3614 and 3621.
cxiii
      25 U.S.C. 3631.
cxiv
      25 U.S.C. 3611.
cxv
      See www.tribalresourcecenter.org/tribalcourts/directory/default.asp for information on court systems.
cxvi
      25 C.F.R. 11.101(e).
cxvii
       25 C.F.R. 11.101(c).
cxviii
       25 C.F.R. 11.201(a).
cxix
      25 U.S.C. 1903(12).
cxx
      See, e.g., Ely Colony Protection of Children from Child Abuse and Neglect Ordinance which essentially
             adopts the Nevada statutes as tribal law. Note: The codes cited in this article can be accessed
             through the Tribal Court Clearinghouse website at http://www.tribal-institute.org/lists/codes.htm.
cxxi
      See generally http://www.tribal-institute.org/lists/codes.htm.
R13227-0                                              322
cxxii
       See, e.g., Codes of Bay Mills Indian Community, Blackfeet Indian Tribe, Confederated Tribes of the
            Grand Ronde Community of Oregon, Little River Band of Ottawa Indians, Makah Indian Tribe,
            Mashantucket Pequot Indian Tribe, Nez Perce Tribe, Poarch Band of Creek Indians, Red Cliff Band
            of Lake Superior Chippewas, Sault Ste. Marie Tribe of Chippewa Indians, Stockbridge Munsee
            Indian Tribe, White Earth Band of Chippewa Indians, Absentee Shawnee Tribe, White Mountain
            Apache Tribe, Confederated Tribes of Warm Springs of Oregon, Chickasaw Nation, Assiniboine
            and Sioux Tribes of the Fort Peck Reservation, and the Coquille Indian Tribe.
cxxiii
       See, e.g., Codes of the Bay Mills Indian Community, Coquille Indian Tribe, Blackfeet Indian Tribe,
            Chitimacha Indian Tribe, Grand Traverse Band of Ottawa and Chippewa Indians, Little River Band
            of Ottawa Indians, Oglala Sioux Tribe, Pawnee Tribe, Poarch Band of Creek Indians, Red Cliff
            Band of Lake Superior Chippewas, Salish and Kootenai Tribes, San Ildefonso Pueblo, Skokomish
            Indian Tribe, Stockbridge Munsee Indian Tribe, White Earth Tribe of Chippewa Indians, Absentee
            Shawnee Tribe, White Mountain Apache Tribe, Chickasaw Nation, Confederated Tribes of the
            Grand Ronde Community of Oregon, Nisqually Indian Tribe, Sault Ste. Marie Tribe of Chippewa
            Indians and the Assiniboine and Sioux Tribes of the Fort Peck Reservation.
cxxiv
       See, e.g., Codes of Blackfeet Indian Tribe, Little River Band of Ottawa Indians, Makah Indian Tribe,
            Poarch Band of Creek Indians, Red Cliff Band of Lake Superior Chippewas, Stockbridge Munsee
            Indian Tribe, White Earth Band of Chippewa Indians, White Mountain Apache Tribe, Grand
            Traverse Band of Ottawa and Chippewa Indians, Hopi Tribe, Mashantucket Pequot Tribe, Oglala
            Sioux Tribe, Pawnee Tribe, Assiniboine and Sioux Tribes of the Fort Peck Reservation, Ute Indian
            Tribe of the Uintah and Ouray Reservation, and the Fort McDowell Yavapai Apache Community
            and the San Ildefonso Pueblo.
cxxv
       See generally http://www.tribal-institute.org/lists/codes.htm.
cxxvi
       Id.
cxxvii
        See, e.g., Codes of the Blackfeet Indian Tribe, Fort McDowell Yavapai Apache Community, Oglala
            Sioux Tribe and the Sisseton Wahpeton Oyate.
cxxviii
        See, e.g., Codes of the Bay Mills Indian Community, Blackfeet Indian Tribe, Confederated Tribes of the
            Grand Ronde Community of Oregon, Little River Band of Ottawa Indians, Mashantucket Pequot
            Tribe, Nez Perce Tribe, Nisqually Indian Tribe, Poarch Band of Creek Indians, Confederated Tribes
            of Siletz Indians of Oregon, Skokomish Indian Tribe, Stockbridge Munsee Indian Tribe, White Earth
            Band of Chippewa Indians, Absentee Shawnee Tribe and the Little Traverse Bands of Odawa
            Indians.
cxxix
       See, e.g., Codes of the Chitimacha Indian Tribe, Grand Traverse Band of Ottawa and Chippewa
            Indians, Little River Band of Ottawa Indians, Pawnee Tribe, Red Cliff Band of Lake Superior
            Chippewas, Chickasaw Nation, Confederated Tribes of the Grand Ronde Community of Oregon,
            Nisqually Indian Tribe, the Assiniboine and Sioux Tribes of the Fort Peck Reservation, Ute Indian
            Tribe of the Unitah and Ouray Reservation, Makah Indian Tribe, Confederated Tribes of Warm
            Springs Reservation of Oregon and the Skokomish Indian Tribe.
cxxx
       See, e.g., Codes of the Pawnee Tribe, Chickasaw Nation, Poarch Band of Creek Indians, Ysleta del Sur
            Pueblo and the White Mountain Apache Tribe.
cxxxi
       See Code of the Hopi Tribe.
cxxxii
        See, e.g., Codes of the Confederated Tribes of the Grand Ronde Community of Oregon, Coquille Indian
            Tribe, Pawnee Indian Tribe, Confederated Salish and Kootenai Tribes, White Earth Band of
            Chippewa Indians, Absentee Shawnee Tribe, and Chickasaw Nation.
cxxxiii
        See, e.g., Codes of the Blackfeet Tribe, Coquille Indian Tribe, Chickasaw Nation, Absentee Shawnee
            Tribe, Confederated Tribes of the Grand Ronde Community of Oregon, Pawnee Tribe, Salish and
            Kootenai Tribes, and the White Earth Band of Chippewa Indians.
cxxxiv
        See, e.g., Codes from the Hopi and Absentee Shawnee Tribes.
cxxxv
        See, e.g., Code of the San Ildefonso Pueblo.
cxxxvi
        See, e.g., Codes of the Oglala Sioux Tribe and the Confederated Tribes of Siletz Indians of Oregon.
cxxxvii
         See, e.g., Codes of the Pawnee, Absentee Shawnee and Chickasaw Tribes.
cxxxviii
         See, e.g., Code of the Confederated Tribes of the Grand Ronde Community of Oregon.
cxxxix
        See, e.g., Code of the Absentee Shawnee Tribe.
cxl
     See, e.g., Code of the Skokomish Tribe.
cxli
     See, e.g., Codes of the Confederated Tribes of the Grand Ronde Community of Oregon, Nisqually Indian
            Tribe, Skokomish Indian Tribe, San Ildefonso Pueblo, Stockbridge Munsee Indian Tribe, White
            Earth Band of Chippewa Indians, Blackfeet Indian Tribe, Red Cliff Band of Lake Superior Chippewa
            Indians, and the White Mountain Apache Tribe.

R13227-0                                            323
cxlii
       See, e.g., Codes of the Pawnee Indian Tribe, Ute Indian Tribe of the Uintah and Ouray Reservation,
              Absentee Shawnee Tribe, and the Chickasaw Nation.
cxliii
       See, e.g., Codes of the Confederated Tribes of the Grand Ronde Community of Oregon, Little Traverse
              Bands of Odawa Indians and the Coquille Indian Tribe.
cxliv
       See, e.g., Codes of Bay Mills Indian Community, Blackfeet Indian Tribe, Colville Confederated Tribes,
              Confederated Tribes of the Grand Ronde Community of Oregon, Grand Traverse Band of Ottawa
              and Chippewa Indians, Hopi Indian Tribe, Oglala Sioux Tribe, Confederated Salish and Kootenai
              Tribes, San Ildefonso Pueblo, Stockbridge Munsee Indian Tribe, Coquille Indian Tribe and the Little
              Traverse Bands of Odawa Indians.
cxlv
       See, e.g., Codes of the Chitimacha Indian Tribe, Colville Confederated Tribes, Fort McDowell Yavapai
              Apache Community, Sault Ste. Marie Tribe of Chippewa Indians and the Poarch Band of Creek
              Indians.
cxlvi
       Holyfield, supra, 490 U.S. at 42.
cxlvii
        Id. at 48.
cxlviii
         25 U.S.C. 1911(a).
cxlix
       See U.S. v. Lara, 124 S.Ct. 1628 (2004).
cl
    25 U.S.C. 1903(10).
cli
     25 U.S.C. 1911(a).
clii
      See 25 U.S.C. 233 (New York tribes); 25 U.S.C. 1751 et seq. (Connecticut Land Claims Settlement Act).
              A few tribes have settlement acts that have been interpreted to be more expansive than P.L. 280 in
              some respects in terms of state jurisdiction. See Rhode Island v. Narragansett Indian Tribe, 19
                                      st
              F.3d 685, 695-696 (1 Cir. 1994), cert. den. 513 U.S. 298 (1994), and Passamaquoddy Tribe v.
                                        st
              Maine, 75 F.3d 784 (1 Cir. 1996).
cliii
       See Bryan v. Itasca County, 426 U.S. 373, 384-385 (1976); California v. Cabazon Band of Mission
              Indians, 480 U.S. 205, 208-212 (1987).
cliv
      See endnote 16.
clv
      Holyfield, supra, 490 U.S. at 48.
clvi
      See, e.g., Codes of the Stockbridge-Munsee Indian Tribe and the Nisqually Indian Tribe
clvii
       See, e.g., Codes of the Bay Mills Indian Community , Sault Ste. Marie Tribe of Chippewa Indians, White
              Earth Band of Chippewa Indians and the Ysleta del Sur Pueblo
clviii
       See, e.g. , Codes of the Confederated Tribes of the Warm Springs Reservation of Oregon and the
              Skokomish Indian Tribe
clix
      Id.
clx
      Although not directly relevant to the exercise of tribal jurisdiction, it is worth noting that one state court
              upheld application of ICWA in a case where the tribe indicated that a child was considered a
              member of the tribe, even though the child was not actually eligible for enrollment. In re
              Dependency of A.L.W., 32 P.2d 297 (Wash. Ct. App. 2001). Another state court, in holding that
              tribal determination of membership is conclusive, opined that it would not independently evaluate
              whether the tribe followed its own rules in making that decision. In the Matter of S.N.R., 61 N.W.2d
              77 (Minn. Ct. App. 2000).
clxi
      See, e.g., John v. Baker, supra, 982 P.2d at 748-759.
clxii
       Matter of Adoption of T.R.M., 525 N.E.2d 298, 306-307 (Ind. 1988).
clxiii
       25 U.S.C. 1911(b)
clxiv
       Holyfield, supra, 490 U.S. at 36.
clxv
       25 U.S.C. 1911(b)
clxvi
       25 U.S.C. 1911; see also, e.g., In re Adoption of T.N.F., 781 P.2d 973 (Alaska 1989), Michael J. Jr. v.
              Michael J. Sr., et al. 7 P.3d 960 (Ariz. App. 2000), In re Elliot, 554 N.W.2d 32 (Mich. App. 1996),
              Quinn v. Walters, 845 P.2d 206 (Or. App. 1993), revd. on other grounds, 881 P.2d 795 (Or. 1994),
              In re Adoption of S.S., 622 N.E.2d 832 (Ill. App. 1993), In re C.A.J., 709 P.2d 604 (Colo. App.
              1985), In re J.R.H., 358 N.W.2d 311 (Iowa 1984), In re T.J.J., 366 N.W.2d 651 (Minn. App. 1985),
              In re Adoption of a Baby Child of Indian Heritage, 543 A.2d 925 (N.J. 1988), Matter of Baby Boy
              Doe, 849 P.2d 925 (Idaho 1993), cert. den. sub. nom. Swenson v. Oglala Sioux Tribe, 510 U.S.
              860 (1993), In re Adoption of Lindsay C., 280 Cal.Rptr. 194 (1991), Matter of Adoption of Baade,
              462 N.W.2d 485 (S.D. 1990), Interest of A.B., 663 N.W.2d 625 (N.D. 2003) and In the Interest of
              D.A.C., 933 P.2d 993 (Utah App. 1997).
clxvii
        25 U.S.C. 1903(4).
clxviii
         See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); In re Dependency of A.L.W., 32 P.3d 297
              (Wash. Ct. App. 2001); In re Matter of S.N.R., 617 N.W.2d 77 (Minn. Ct. App. 2000).
clxix
       25 U.S.C. 1903(1).
R13227-0                                                324
clxx
      See, e.g., Baby Boy L., 643 P.2d 168 (Kan. 1982), Matter of Adoption of T.R.M., supra (Indiana) In re
              Bridget R., 49 Cal.Rptr.2d 507 (Cal. App. 1996), Rye v. Weasel, 934 S.W.2d 257 (Ky. 1996),
              Hampton v. J.A.L., 658 So.2d 331 (La. Cal. App. 1995), In re S.C., 833 P.2d 1249 (Okla. 1992),
              and In re Crews, 825 P.2d 305 (Wash. 1992).
clxxi
       See, e.g. , Baby Boy L., 643 P.2d 168 (Kan. 1982).
clxxii
        In re Bridget R., 49 Cal.Rptr.2d 507 (Cal. App. 1996), In re Santos Y., 112 Cal.Rptr.2d 692 (Cal. App.
              2001).
clxxiii
         In re Junious M., 193 Cal.Rptr. 40 (Cal. App. 1983), In re Adoption of Lindsay C., 280 Cal.Rptr. 194
              (Cal. App. 1991), In re Alicia S., 76 Cal.Rptr.2d 121 (Cal. App. 1998), and In re Desiree F., 99
              Cal.Rptr.2d 688 (Cal. App. 2000).
clxxiv
         See, e.g., Interest of A.B., 663 N.W.2d 625 (N.D. 2003).
clxxv
        Matter of Adoption of Baade, 462 N.W.2d 485 (S.D. 1990).
clxxvi
         See endnotes 170 and 172.
clxxvii
          See Matter of Appeal in Pima County, 635 P.2d 187 (Ariz. Ct. App. 1981).
clxxviii
          Department of Interior, Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody
              Proceedings, 44 Fed. Reg. No. 228, 67584. (Nov. 26, 1979), Section C.3.(b).
clxxix
         Compare In re Adoption of S.W., 41 P.3d 1003 (Okla. Ct. App. 2001), In the Matter of the Guardianship
              of J.O., 743 A.2d 341 (N.J. App. Div. 2000), In re Maricopa County Juvenile Action No. JS-8287,
              828 P.2d 1245 (Ariz. Ct. Apr. 1991), In the Interest of C.W., 479 N.W.2d 105 (Neb. 1992) and
              Matter of Adoption of T.R.M., supra (Indiana) (best interests determination is relevant to the
              evaluation of good cause in the context of a transfer petition) with Yavapai-Apache Tribe v. Meija,
              906 S.W.2d 152 (Tex.Ct. App. 1995), In re Arnell, 550 N.W.2d 1060 (Ill. App. 1990), In re C.E.H.,
              837 S.W.2d 947 (Mo. App. 1992), and People in Interest of J.L.P., 870 P.2d 1252 (Colo. Ct. App.
              1994) (best interests not relevant to evaluation of transfer petition).
clxxx
        25 U.S.C. 1911(d)
clxxxi
         Matter of Adoption of T.R.M., supra.
clxxxii
          See, e.g., In re Laura F., 99 Cal.Rptr.2d 859 (2000).
clxxxiii
          25 U.S.C. 1903(2) and (6).
clxxxiv
          25 U.S.C. 1903(9).
clxxxv
          25 U.S.C. 1915(c).
clxxxvi
          25 U.S.C. 1915(d).
clxxxvii
           See, e.g., Codes of Absentee Shawnee, Chickasaw and Pawnee Tribes.
clxxxviii
           See, e.g., Codes of the Blackfeet Tribe, Poarch Band of Creek Indians, Nez Perce Tribe, Red Lake
              Band of Chippewa Indians and Stockbridge-Munsee Indian Tribe.
clxxxix
          See, e.g., Codes of the Chitimacha Indian Tribe, Hopi Tribe, San Ildefonso Pueblo, Makah Indian Tribe,
              Nisqually Indian Tribe, Little Traverse Bay Band of Odawa Indians, and Sault Ste. Marie Tribe of
              Chippewa Indians.
cxc
     See, e.g., Codes of the Nisqually Indian Tribe and Little Traverse Bay Band of Odawa Indians.
cxci
      See, e.g., Code of the Chickasaw Nation.
cxcii
       See, e.g., Codes of the Nez Perce Tribe and Confederated Tribes of Siletz Indians of Oregon.
cxciii
        See, e.g., Codes of the Poarch Band of Creek Indians and the White Earth Band of Chippewa Indians.
cxciv
        Bulletin from the Director of the United States Department of Justice, Office of Justice Programs, Office
              for Victims of Crime found at http://www.ojp.usdoj.gov/ovc/publications/infores/tribal/tribalbult.htm.
cxcv
        25 U.S.C. 3210(d).
cxcvi
        See testimony at September 24, 2003 hearing on the reauthorization of the Indian Family Violence and
              Child Protection Act at http://indian.senate.gov/2003hrgs/092403hrg/092403wit_list.html.
cxcvii
         25 U.S.C. 1931(b).
cxcviii
          45 C.F.R. 1355.20(a).
cxcix
        42 U.S.C. 672(a)(2)(B).
cc
     See, e.g., Acosta v. San Diego County, 272 P.2d 92, 98-99 (Cal.App. 1954).
cci                                                              th
      See, e.g., White v. Califano, 581 F.2d 697, 697-698 (8 Cir. 1978).




R13227-0                                               325

				
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