Indian Child Welfare Act: The Real Tragedy Is That It’s Not Enforced

Casey Jo Caswell of Lansing, Mich. made a terrible mistake. Homeless and jobless, she turned to Michigan’s child welfare agency for help raising her son, Ricky.

But the agency offered no help with housing, no help with a job and no help with education. They told her to surrender the child to “temporary” foster care, and then rushed to terminate her parental rights.

Ricky was placed with middle class foster parents in a nice, big home. First it was as a foster child, then it became his adoptive home.

Once, during a counseling session, The Detroit News reported, the boy was playing with two plastic horses when he said: “This little horse is going to die if he can’t be with his mother.” That proved prophetic. Ricky Holland’s white adoptive parents murdered him. They stuffed his body in a trash bag and left it by the side of a road.

Yet in all the years since, no one has suggested that, because of this horror story, the so-called Adoption and Safe Families Act (ASFA), the law that spurred the rush to place Ricky in the home where he was adopted to death, should be repealed or curbed. That’s understandable. There’s an excellent case for curbing ASFA, but it shouldn’t be built on horror stories that unfairly stigmatize entire groups.

Yet Marie Cohen offers a similar horror story involving a Native American home (recycled from the Goldwater Institute) as the only evidence in support of her claim that the Indian Child Welfare Act (ICWA) should be curbed. Or maybe should never have been passed at all; she’s not clear about that.

Cohen dismisses in a single sentence the horrors inflicted on Native American children that led to passage of ICWA. In fact, from the 19th century through the 1960s, American child welfare agencies tried to effectively eradicate Indian culture and, indeed, Indian tribes, by simply taking away children.

First, they were warehoused in hideous orphanages. Later, there was a campaign of mass adoptions. Melissa Harris Perry called the orphanages an “explicit cultural extermination mission.”

By the mid-20th century, people stopped actually saying “kill the Indian, save the child.” But it took ICWA to change practice, and it hasn’t changed nearly enough.

No, Racism Isn’t Dead

Opponents of ICWA respond exactly as the Supreme Court majority dealt with the Voting Rights Act: Well, yes, racism used to be a problem, but not anymore!

There are two problems with this:

CarlisleIndianIndustrialSchool1900
Before ICWA: The Carlisle Indian Industrial School, 1900

First, if you curb a bad practice by passing a law and then you eviscerate the law, it’s not hard to figure out what will happen next. Witness the wave of voter suppression laws that followed the Supreme Court voting rights decision.

Second, contrary to what John Roberts and Marie Cohen seem to think, racism isn’t dead.

In 2003, Dewey Sloan, chief juvenile prosecutor in an Iowa county where Native American children were in foster care at a rate seven times higher than the rate for white children told The Des Moines Register: “I don’t think there’s anything in any of these cases that points to something positive about Indian culture, except the culture of drugs and the culture of poverty and the culture of abuse.”

Or consider what happens to Native American children in South Dakota. That state tears apart families at a rate 80 percent above the national average.  And while Native Americans are 15 percent of the population, they are more than half of all foster children. The horrors inflicted on Native American children by the state were documented in a heart-rending series by NPR in 2011.

NPR’s findings were confirmed by a federal judge last November. And, in another lawsuit, the federal government is charging the South Dakota Department of Social Services with discriminating against Native American job applicants.

So yes, there’s a problem with ICWA: The problem is it’s not enforced.

Cohen bemoans the fact that under ICWA, child welfare agencies are supposed to make “active efforts” to keep families together, theoretically a higher standard than the “reasonable efforts” required for non-Native children.

But the reasonable efforts requirement was never enforced and was rendered effectively meaningless by ASFA. In Michigan, where Ricky Holland died in his adoptive home, 40 percent of judges surveyed admitted that they lie and certify that “reasonable efforts” were made to keep families together even when they don’t really believe it.

And the fact that four separate studies since 1996 found that 30 percent of foster children could be home right now if the families simply had decent housing further illustrates that in practice “reasonable efforts” often means zero effort. So in real life, “active efforts” means ever-so-slightly more than zero.

When it comes to the treatment of Native American children, that’s the real horror.

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Richard Wexler
About Richard Wexler 51 Articles
Richard Wexler is Executive Director of the National Coalition for Child Protection Reform, www.nccpr.org. His interest in child welfare grew out of 19 years of work as a reporter for newspapers, public radio and public television. During that time, he won more than two dozen awards, many of them for stories about child abuse and foster care. He is the author of Wounded Innocents: The Real Victims of the War Against Child Abuse (Prometheus Books: 1990, 1995).

1 Comment

  1. Thank-you for that article Richard. My children are the fifth generation that was taken by the United States government, never to be raised by our mothers….whether it was mission catholic boarding schools, false adoption or CPS, the trauma inflicted on my people continues.

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