Is it just me or has someone else noticed that below the surface and behind the mandatory background checks for Foster Care Parents on Reservations, there are alternate motives other than child safety including a sneaky effort to undermine tribal sovereignty here?
I will share some background information. The primary purpose behind the BIA revision to the ICWA Guidelines and subsequent proposal for rulemaking was two-fold: 1) to address the gross, almost routine non-compliance by states in the implementation of ICWA and 2) as a response to the recent ICWA legal challenges primarily from the adoption industry. The industry made an important collateral attack. Boil it down, the fundamental question posed is whether the stricter Guidelines after the revision should apply to Indian children offreservation as it does to Indian kids on reservation. Revision to the Guidelines clarified what the fundamental role of ICWA is: to keep Indian children with Indian relatives or communities and reunify Indian families. The intent of the legal challenges is to undermine tribal government jurisdiction, autonomy and inherent interest in enrolled members. How does this new law requiring background checks for foster care parents on reservations fit into the picture? I explain below.
A child’s immediate family and community are key to fulfilling the most vital purpose of ICWA – reunification. A minor legal issue within a family member’s background should not act to bar consideration of that person as a Indian Custodian or Guardian. However, that is exactly what happened off the reservation. This formal law “requiring” an extensive, non-forgiving back ground check now on the reservation will produce an even shorter supply of foster parents. More importantly, the new law specifically acts to undermine the hard work of those tribes which have created and now run their own Title IV-E Foster Care and social services programs.
These two issues – the collateral argument against ICWA stemming from recent litigation and the impact of the new law requiring background checks on Indian reservations will combine with the Federal Adoption and Safe Families Act passed in 1997, under the Clinton Administration to produce the perfect storm. The Safe Families Act is just a federal incentives program which pays states more money when foster children are adopted. Basically, the Safe Families Act requires children who have been in state Foster Care Programs at least 15 months to be prepared for adoption (such as express removal of parental rights).
The adoption industry is a $14 billion industry with an expected growth rate of 10% annually. Without making any distinction between Indian or non-Indian children, any financial incentive program contradicts the reunification goal stated in both ICWA and the Social Security Act procuring Title IV-E funding. Is this leading up to total circumvention of ICWA? Pseudo shortage of Native foster parents may be used to declare a state of emergency and with looming state budget cuts within the foreseeable future, it is imperative an alternate model to supplant ICWA is created.
Please, consider buying a copy of the American Indian Probate Guide which is written expressly for American Indians who have Trust or Restricted lands. There is a model Will available and compliant under the American Indian Probate Reform Act. I created my legal guide service in response to the unmet need for affordable in-depth legal education in Indian Country at http://www.educationalfamilyestateapps.com. Additionally, you can access my unique analysis on the Indian Child Welfare Act.
After extensive research, I have concluded that many who benefited from the ICWA and / or adoption gravy trains were not interested in revealing what you needed to know. I propose a voluntary Legal Guardianship model which is expressly exempted from ICWA within ICWA itself. YES!
Read more at Educational Family Estate Apps under Our Products and then the American Indian Probate Guide or on my website’s Blog. Feel free to contact me if you are interested in learning more.
Helen Nowlin, Attorney and CEO