DEVELOPED BY THE NATIONAL INDIAN CHILD WELFARE ASSOCIATION

Background and Purpose

In October of 2003, Congressman Delay (R-TX), later joined by Congressmen Herger (R-CA) and Stark (D-CA), requested a study of the implementation of the Indian Child Welfare Act by the Government Accountability Office (GAO). In the request letter, Congressman Delay said, “It has come to my attention that problems may be occurring in how states and tribes interpret the provisions of the Act [ICWA].” He went on to say in the letter that he was particularly concerned with the scope of ICWA’s application and wanted GAO to document any delays in foster care or adoptive placements due to issues related to ICWA and more recent laws, such as the Adoption and Safe Families Act. Tribal advocates were initially concerned about the reasons behind this request and the possibility that it might overlook critical issues related to ICWA implementation, but they actively participated nonetheless.

GAO began the study in late 2003. The collection of data by GAO took place between January and October of 2004 utilizing a variety of information collection methods that included, focus groups, surveys, phone interviews, and review of service data. Information was provided during this process by representatives from tribes, states, courts (tribal and state), private adoption interests, Indian organizations, mainstream child advocacy groups, and scholars. The study was completed and released to the public on April 5, 2005.

You can obtain a copy of the report at the following Web address: www.gao.gov/docsearch/abstract.php?rptno=GAO-05-290

Summary of Findings and GAO Recommendations

Overall, the study found that the application of the Indian Child Welfare Act did not result in poorer outcomes for Indian children. In three of the four states that had more comprehensive data on ICWA cases, Indian children did as well if not better than non-Indian children in state care in relation to the data GAO was looking at.

In interviews, GAO heard from tribes and states how limited funding can be a barrier to improving outcomes for Indian children. Tribal representatives identified the dilemma they face when states ask for help to recruit and license foster care homes and tribes are not able to respond, because they don’t have federal foster care or adoption assistance funds (Title IV-E). Tribal representatives also stated that the lack of tribal funding for child welfare services can prevent them from asking for or accepting a transfer of jurisdiction of a case from state court.

GAO also found that the vast majority of states were collecting little, if any, data on Indian children subject to ICWA. Consequently, this has made it very difficult to determine the level of compliance with ICWA requirements (i.e., notice to tribes, placement with relatives, and active efforts to reunify children with parents). GAO also found that no federal agency had explicit authority to monitor and provide oversight on ICWA, although the Department of Health and Human Services (DHHS) is mandated to collect information on ICWA compliance through federal programs that the states administer.

GAO stated that it is their belief that DHHS is in the best position to provide guidance to states on ICWA reporting and implementation. They also said that they believed DHHS could be more effectively utilizing the information they already collect and that this same information suggests that several states could benefit from additional guidance on ICWA implementation. DHHS responded to the report by claiming they have no authority to engage in ICWA oversight and that there needs to be further study of ICWA and tribal child welfare issues before any improvement plan could be developed or implemented. GAO said that they believe efforts to improve ICWA implementation with existing information can be done now without waiting for further study.

GAO made one recommendation in the report. The recommendation asked for 1) DHHS to review ICWA issues revealed in reviews of state child welfare systems, 2) require states to discuss ICWA issues in their annual reports that were not addressed in performance improvement plans, and 3) use the data identified in these state reports and plans to direct guidance to states on how to improve ICWA compliance. This recommendation requires little additional resources and effort on DHHS’s part and works with existing information collected by DHHS. The National Indian Child Welfare Association feels that the GAO’s findings indicate that a more comprehensive system of review of ICWA compliance is required, similar to what has been included in H.R. 2750 from the 108^th Congress (Section 18).

Conclusion

The GAO report affirms what tribal leaders and tribal child welfare advocates have been saying for over two decades—ICWA is good law and good practice for Indian children, families, and tribes. While the GAO study was not an exhaustive review of state ICWA compliance, it clearly indicates that there are significant problems that will not be solved until a federal agency is required to take responsibility for providing oversight of ICWA. While ICWA is the principal federal child welfare law that provides protections for Indian children and families, it is the only federal child welfare law of this stature without a regular federal review.

The GAO report also revealed that access to funding is a critical factor in tribes’ ability to provide services to their own children and assist states that have Indian children in their custody. When tribal capacity is strengthened, Indian children and families benefit, whether they are in tribal or state care. Access for tribes to federal child welfare funding sources, such as Title IV-E Foster Care and Adoption Assistance, were specifically mentioned. Tribal legislation that would provide direct access to the federal Title IV-E entitlement program for tribes (S. 672) is part of the solution to enable tribes to better serve their children and participate in services for children under state custody.

If you would like more information on the GAO report, please contact NICWA staff member, David Simmons at desimmons@nicwa.org or call (503) 222-4044, ext. 119.