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									Child Welfare in “Indian Country”

  (c) ICFRC 2011
                      Presented by

                 Kathy Deserly, Director
            Indian Child and Family Resource Center
                        Helena, Montana

                          April 13, 2011

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     So what is “Indian Country?”

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The Land
   There are a number of types of "Indian country"
    recognized by US law:

   To be recognized as "Indian country", usually, the land must either
    be within an Indian reservation or it must be federal trust land
    (land technically owned by the federal government but held in trust
    for a tribe or tribal member).

   For most purposes, the types of Indian country are as follows:

        reservations
        informal reservations
        dependent Indian communities
        allotments and
        special designations

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The People
   4.1 million people reported as American
    Indian/Alaska Native (AI/AN) on the last U.S.

   There are 565 federally-recognized Tribes

   There are 34 urban Indian Health Programs
    contracted with the Indian Health Service

   There are urban Indian Centers in at least 26
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The People, continued…
   The Native American population is not evenly spread across
    the nation. The majority of Native Americans live in the
    western regions of the United States, specifically 43%.

   The remainder of the Native population lives in the south,
    31%, the midwest, 17%, and the northeast, 9%. This statistics
    demonstrates how the Native American population is
    concentrated into few general areas. Over half of Native
    Americans live within ten states.

    In 2000, the states with the largest Native American
    populations were California, Oklahoma, Arizona, Texas and
    New Mexico. Twenty-one states have Native American
    populations which constitute less than 1% over their overall
    population, including states such as Pennsylvania, New Jersey
    and West Virginia. (Wikipedia)
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The Myths
   All Indian people get a check from the government every
   All Indian tribes have casinos and make a lot of money
   All Indians are rich
   All Indians are poor
   All land on Indian reservations is owned by Indian people
   All Indian people share the same culture and traditions
   Non-Indian people can‟t go on Indian reservations without
   All Indian people used to live in teepees
   Why should states „take care of ” Indian people? They
    don‟t pay taxes…That‟s what the Bureau of Indian Affairs
    is for.
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The Principles of Indian Sovereignty
and the Trust Responsibility
 A few basic principles provide guidance about the government
    relationship with Indian tribes:

 1)    the Constitution vests Congress with plenary power over
       Indian affairs;

 2)    Indian tribes retain important sovereign powers over their
       members and their territory, subject to the plenary power of
       Congress; and

 3)    the United States has a trust responsibility to Indian tribes that
       guides and limits the Federal Government in dealings with
       Indian tribes. Thus, federal and tribal law generally have primacy
       over Indian affairs in Indian country, except where Congress has
       provided otherwise.

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Federal policies have impacted Indian
tribes since first contact

   Treaties, dependant
    sovereign governments,
    and federal trust
    relationships play a role
    in all tribal

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History of child welfare services in tribal

    Historically, tribal communities had no need for child
     welfare systems that exist in mainstream society today.
     Traditional beliefs, structures, customs and values
     about child rearing and protection provided the „safety,
     permanence and well-being‟ of traditional American
     Indian/Alaska Native communities.

    No courts and no social workers existed to ensure
     child safety. Through community values, peer pressure
     and other cultural practices enforced by extended
     family, a natural child protection system existed.

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Western contact and influence
   But since earliest contact by non-Indians with Native people,
    most attempts to “civilize” American Indian and Alaska
    Native people focused on children.

    Ongoing efforts were made to separate children from their
    families as a way to assimilate and acculturate Native people.
    This actually had the opposite effect of decreasing natural
    resiliency and protective factors.

   The Civilization Fund Act of 1819 was created by the United
    States legislature to encourage activities of benevolent
    societies in providing education for Native Americans and
    also authorized an annuity to stimulate the „civilization
    process. (Wikipedia)

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Civilization Fund Act - 1819

   The Civilization Act intended to “civilize” and
    Christianize Indians through federal and private

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Removal Act - 1830

   The Removal Act
    was enacted to
    move Indians away
    from traditional
    homelands to
    “Indian Territory”
    west of the

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Solving the „problem‟ through the
   In a report to Congress in 1867, the
    commissioner of Indian services declared
    that the only way to deal with the “Indian
    problem” was to separate children
    completely from their tribes.

   In support of this policy, both the
    government and private institutions
    developed military-like boarding schools for
    American Indian/Alaska Native children.

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Indian Boarding Schools
1860s – present
Children were removed from their homes and
families and sent to military style boarding

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The intent of boarding schools was
to acculturate Native American
children into mainstream society

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Other federal laws disrupted Native families
and traditional tribal ways of life

     Under the Dawes Allotment Act of 1887,
      reservation land was divided up in an effort to
      turn Indian people into nuclear families and
      farmers. The Act introduced the „blood quantum‟
      concept of tribal enrollment.

     The Homestead Act allowed non-Natives to
      homestead any surplus lands after the allotments
      were made to tribal members. This created
      „checkerboard jurisdictions‟ on Indian
      reservations (non-Indian and Indian lands within
      the same boundaries)
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The 20th century…

   By 1900 the rearing of Native children
    was largely under the control of the
    federal Bureau of Indian Affairs – an
    agency formerly under the War Department -
    and tribes had been effectively stripped of
    the natural systems of child protection.

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Other 20th century federal laws and policies
impacting tribal children and families

   Federal and private agency policies
    and practices
    ◦ Indian Adoption Project
      (Bureau of Indian Affairs and the
      Child Welfare League of America)
    ◦ Public Law 83-280 in 1953
    ◦ “Relocation Program” - 1950s
    ◦ 1960s: tribes began challenging the
      placement rate of their children
      into non-Indian homes

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Advocacy and Action in the 1970s

    1970s: the Association
     on American Indian
     Affairs, a private
     organization in New York,
     conducted national
     surveys to learn the
     extent of Indian child
     welfare issues.

     ◦ Their studies found 25-
       35% of all Indian children
       had been removed from
       families and placed in
       non-Indian care
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Finally… after years of antagonistic and
  destructive policies impacting American
  Indian and Alaska Native peoples, the
  voices of tribes and tribal advocates led to
  action …

In 1978 … Congress passed the federal
  Indian Child Welfare Act

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Indian Child Welfare Act (Public Law 95-
 Congressional Findings:
 (3) that there is no resource that is more vital to the continued
  existence and integrity of Indian tribes than their children and that the
  United States has a direct interest, as trustee, in protecting Indian
  children who are members of or are eligible for membership in an
  Indian tribe;
 (4) that an alarmingly high percentage of Indian families are broken up
  by the removal, often unwarranted, of their children from them by
  nontribal public and private agencies and that an alarmingly high
  percentage of such children are placed in non-Indian foster and
  adoptive homes and institutions; and
 (5) that the States, exercising their recognized jurisdiction over Indian
  child custody proceedings through administrative and judicial bodies,
  have often failed to recognize the essential tribal relations of Indian
  people and the cultural and social standards prevailing in Indian
  communities and families.
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ICWA has two overall focuses

    To affirm existing tribal authority to handle child
     protection cases (including child abuse, child neglect,
     and adoption) involving Indian children and to establish
     a preference for exclusive tribal jurisdiction over Indian
     children residing or domiciled on the tribe‟s

    To regulate and set minimum standards for the handling
     of those cases remaining in state court and in state
     child protection agencies.

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While it was cause for celebration in
tribal communities, ICWA has not
solved all tribal child welfare concerns

Tribes continue to be affected by impacts of

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 Historical Trauma
• Trauma upon trauma that occurs in history to a specific
  group of people causing emotional, mental and spiritual
  wounding both during their lives and in the generations that

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Intergenerational Grief

• Grief that is passed down from the generation
  experiencing the trauma to their children (the next
  generation) even though they may not be aware of or have
  direct experience of the actual traumatic events.

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   Many mental health and social service
    practitioners attribute the deeply-
    rooted historical trauma and
    intergenerational grief with the
    challenges experienced in many tribal
    communities today… poverty, child
    neglect and abuse, substance abuse, high
    school drop out rates, suicide, domestic
    violence, illness..

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   While tribal communities experience
    daunting challenges, there are many
    who are focused on addressing these
    needs to build a strong and better
    future for children and families.

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“Tribal sovereignty is being able to actively and
consciously participate in the creation of our own
future. If our future is decided by others, we are not
really sovereign. There is a direct relationship
between sovereignty and the capability of tribal
governments to determine what our future will be.
Tribes want to exercise sovereign authority, to
determine our own futures, to develop our own
collective and individual visions for the future of
human service delivery in tribal communities.”
(Dr. Eddie F. Brown, Imagining a New Future for American Indian Human Service
Systems, 2002)

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    Today, tribes across
     the country have
     assumed responsibility
     for many community
     services, including child
     protection and family
     support services.
     There is a movement
     of cultural renewal and
     revitalization in an
     effort to counteract
     the effects of historical

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     …so how are child welfare
      services provided in Tribal

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    Many Tribes have community
     systems that look similar to towns
     and cities:
           Leadership (Tribal Councils)
           Law enforcement
           Tribal courts
           Health clinics
           Social Services
               Child welfare services:
               Child protection workers
               Case managers
               Foster home workers
               Indian Child Welfare workers
               Family preservation workers

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But multiple jurisdictional issues impact
and challenge tribal child welfare systems

    Child welfare services for American Indian/Alaska
    Native children residing on tribal lands is often
    complicated by multiple, overlapping and often
    unclear lines of authority and responsibility
    between tribes, state or county programs and the
    Bureau of Indian Affairs.

    Issues of jurisdiction, sovereignty and governance
    have played a major role in the development of
    tribal child welfare systems.

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P.L. 638 Indian Self-Determination and
Education Assistance Act, 1975

    Public Law 93-638, known as “638”, conferred on tribes „the right to
     make their own decisions without interference from others.‟

    The ISDA directs BIA and the Indian Health Service (IHS) to contract
     out to tribes most of the services administered by these agencies. The
     Act also authorized grants to help strengthen tribal management of
     Indian community services.

    The Act has an explicit disclaimer that the law is in no way a
     termination of the federal government‟s trust responsibility to Indian

    The Self-Determination Act offered the first opportunity for tribes to
     be empowered to re-assume responsibility for the direction of their

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The role of the state in
tribal child welfare services
In some states, such as California, Michigan, Alaska and
others, Public Law 280 also provides concurrent
jurisdiction in Indian country. This means the county child
welfare agency may provide child protective services and
child welfare services on Indian reservations in the state.

In other states, such as Montana, North and South Dakota
and others, child welfare services are spelled out through
agreements or contracts. For example, in some states, the
state passes through federal Title IV-E funds to the tribes,
who then manage the program services.

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The role of the BIA in
tribal child welfare services

The Bureau of Indian Affairs is responsible
for assuring that child welfare services are
available to members of Federally
recognized tribes (who reside on
reservations) for whom such services are not
otherwise accessible. (For example, if a child
is not IV-E eligible, the BIA would likely pay
for services for that child if the child is an
enrolled tribal member.)
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The role of state, tribal and BIA child welfare
services in tribal communities varies from
tribe to tribe. Some tribes are ‘self-
governance,’ meaning that they have
compacted the services formerly provided by
the Bureau of Indian Affairs and they handle
those services completely.

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The Role of Tribes in Child Welfare
Services Delivery on Indian

     Depending on the size of the Tribe, the
      child welfare program will perform
      similar functions (on a smaller scale) as a
      state or county child welfare programs –
      although with considerably less staff and

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     Often, tribal workers wear multiple „hats‟ to
      cover all of the tasks required of small
      programs who must meet tremendous
      community needs.

     For example, a foster care worker may also
      be the ICWA worker – handling ICWA
      cases arising all over the country.

     Or there may be just one person in the role
      of Director/ICWA worker.

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   One of the most significant differences
    between social work delivery as a
    state/county worker vs. social work
    delivery as a tribal worker in tribal
    communities is that there may be
    significant blood and social ties between
    the staff and the community members
    being served.

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    While these ties may be challenging at
     times in assuring that services are
     provided by neutral staff, these
     community ties also create a more
     unique passion for the job. The desire
     to improve outcomes for children and
     families is often more personal because
     the community is an extension of family
     and lifelong social relationships.

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Training and Technical Assistance
    Like state child welfare agencies, tribal
     child welfare programs can benefit from
     outside training and technical assistance
     to enhance and support the services they
     are providing to the community.

    It is not uncommon for tribes to access
     training and technical assistance to create
     new programs or improve existing
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Fostering Connections to Success and
Increasing Adoptions Act - 2008
   New national child welfare legislation also
    brings new opportunities for tribal child
    welfare systems

   The Fostering Connections to Success
    and Increasing Adoptions Act opens a
    door for developing tribal-state
    agreements as well as direct tribal access
    to Title IV-E foster care funds
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   This legislation also supports other
    important systems improvements such as:

     ◦   Actively locating relatives for children in care
     ◦   Guardianship subsidies
     ◦   Sibling placements
     ◦   Educational and health services stability

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Fostering Connections as a mechanism for
improving child welfare in Indian country

    Increased relative search for children in foster care
     (including Native children involved in ICWA cases)

    Assurances that all children‟s (including Native
     children) educational and health needs are met in
     child welfare systems

    Opportunities for tribal-state collaboration in
     development of tribal-state child welfare

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Collaboration tips when working with
Tribal communities and child welfare

    First, learn about the Tribal Nation you will be working
     with ~

      ◦ Learn on your own about the history and

      ◦ Find out if the tribe is located in a Public Law 280
        state. What kind of jurisdictions are the tribal lands

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  ◦ Ask the Tribal contact person about their

  ◦ Review the Tribe‟s website if they have one

  ◦ Learn about elected officials roles and titles (i.e.,
    President, Chairman or Chairwoman, Principal

  ◦ Be familiar with the tribal structure. How is the
    government set up to operate?

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 ◦ Ask about other community stakeholders who should
   be included in any meetings or work you are doing.

 ◦ Be aware that „turf‟ issues may exist among community
   service providers

 ◦ Include the Tribal staff in all phases of planning and
   development of any work you are doing.

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When working in Tribal communities,

    As outside service providers, we are invited guests to
     tribal communities -

     ◦ Observe the host‟s protocols

     ◦ Be flexible (if a meeting starts late, it may require a
       modification of the agenda – go with the flow)

     ◦ Assume that every tribal community you may work
       with is unique and NOT the same (culturally,
       linguistically, economically)
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     ◦ Don‟t be offended if people speak their language to
       one another in front of you

     ◦ Don‟t take pictures in meetings or in the community
       without first asking permission

     ◦ When in doubt, ask your host what the proper
       protocol is for meeting attire, meeting procedures,
       etc. If you plan icebreakers and meeting activities, ask
       first if they will be well-received.

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   Native people survived and thrived prior to Western contact

   Historically, children were cared for through extended family systems,
    including through traditional adoptions

   Tribal communities have adapted service systems to the „mainstream‟
    model – often due to funding needs and regulations

   Tribal communities base tribal systems on traditional cultural values
    and beliefs

   Today, tribal communities continue to meet the needs of children
    through the extended family system

   Tribal child welfare systems – like state systems – are continually
    evolving to seek the best outcomes for vulnerable children and
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                     For more information

                 Kathy Deserly
  Indian Child and Family
       Resource Center

 501 N. Sanders St., Suite 204
     Helena, MT 59601

         406-443-8202 (T)
         406-545-2227 (F)

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