The Misapplication of The Indian Child Welfare Act

by Johnston Moore

Last December, Attorney General Eric Holder announced a new Department of Justice (DOJ) initiative aimed at promoting compliance with the Indian Child Welfare Act (ICWA), a 1978 federal law passed in response to the “wholesale removal” of Native American children from their families.

Tribes were rightly concerned at the time that many Indian children were removed from their families by non-Indian social workers unfamiliar with tribal child-rearing practices and placed in non-Indian foster and adoptive homes away from Indian Country, where many were forced to assimilate into the majority culture, losing connection to the tribal life and customs in which they had been raised. Tribes and Indian families suffered greatly too, as they saw many of their younger members taken away.

In his announcement, Holder pledged to “ensure that the next generation of great tribal leaders can grow up in homes that are not only safe and loving, but also suffused with the proud traditions of Indian cultures.” In that statement, Holder demonstrates an alarming level of naiveté regarding ICWA, and the ways it is impacting children today.

Two of the common-sense measures of a good law are that it does what it was intended to do and, equally important, it doesn’t do what it wasn’t intended to do.

By this second measure, ICWA, though well-intentioned, fails monumentally, and does so in ways that increased compliance will mean only more disruption and trauma for many children.

My wife and I first encountered the Indian Child Welfare Act in 2001. We were foster parents to two young boys whom we hoped to adopt. The boys are half brothers biologically, the older five years old and Caucasian, the younger four and Hispanic, or so we were told when they were placed in our home in the summer of 2000.

Soon after they were placed with us, they began calling us Mom and Dad, names they had never called their biological parents, whom they had called by their first names. Their social worker remarked that she had never seen foster children and foster parents bond as quickly as we all had. Their therapist was elated at their progress. It was truly a match made in heaven, if ever a foster placement could be called that.

No relatives stepped forward to take the boys in the beginning, and their biological parents were nowhere to be found, so Los Angeles County DCFS workers began to treat our case as a fast-track adoption. We were thrilled, the boys were doing great and quickly growing attached, and we all began to prepare to make them a part of our permanent family.

Several months into the placement, a paternal relative of our older son stepped forward, requesting custody of him. Though we were told the case was far too advanced for a relative to receive placement preference at that point, and though our son had no memory of ever meeting this relative, the relative had played a trump card that apparently changed everything.

The boys, as it turned out, are 1/16 Native American, which made them eligible for membership in the Iowa Tribe of Kansas and Nebraska, making them subject to ICWA, and gave the relative (though non-Indian like ourselves and related to only one of the boys) placement preference over us.

When questioned, the boys knew nothing of their tribe or Native heritage. The reservation itself was over 1,500 miles away, and neither of the boys had been enrolled in the tribe by their abusive grandfather (their mother was enrolled, unbeknownst to her).

Conversely, the tribe had no knowledge of the boys.

The case was turned over to the American Indian Unit at the L.A. County Department of Children and Family Services, where social workers began a nearly year-long battle to remove our boys from our home; against the boys’ will, against our will, and against the boys’ biological mother’s will, and for no other reason but their mother’s enrollment in a tribe some 32 years before.

I stayed up many late nights researching ICWA, and I soon discovered that neither the tribes, nor Congress, were talking about children like my sons when they came together to pass this law in 1978. But trying to reason with the social workers and their supervisors proved fruitless; in their eyes, the boys were Indian, and we were not, and therefore we were unfit to raise them.

The only thing that apparently mattered to the social workers was moving them from our non-Indian home using any means possible, including manipulation and fabrication of facts, attempted coercion and outright perjury.

Eventually, the boys’ mother testified before the judge that she wanted the boys to stay with us, which gave the judge the freedom (through a good cause showing) to allow the boys to stay with us. All involved knew that the result was miraculous, but it shouldn’t have been.

Since the adoption, we have heard from many foster and adoptive families in similar situations. In some cases, justice prevails, and children are able to stay in loving, stable families in which they’ve attached, but in others, it doesn’t, and children are removed from homes in which they have lived and thrived for considerable amounts of time because of nothing more than some minute blood connection to a federally recognized tribe.

As Holder drew to a close, he stated, “We recognize that any child in Indian Country – in Oklahoma, or Montana, or New Mexico – is not fundamentally different from an African-American kid growing up in New York City.  And neither child should be forced to choose between their cultural heritage and their well-being.”

And to that I would ask Mr. Holder what that has to do with two young boys born and raised in Southern California, whose only connection to a tribe in Northeastern Kansas is a few drops of blood. Had my son been moved to live with his paternal relative, would he have been raised in a home that was “suffused with the proud traditions of Indian cultures?”

I think not.

Johnston Moore is the co-founder and executive director of Home Forever.

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  1. Have you come to shower me with benefits? No? You only make money by taking my child and terrorizing her? Destroying her and I? Utter destruction is ALL you offer? Is there a Department Of N**** Child Welfare? Scottish? Muslim???? NOthing???? Should a country with proven and KNOWN mass genocide of NDN’s be in charge of “Indian Children?”

  2. Is this the “White Privilege” they talk about?. A large percentage of White /Black/Asian – Americans have more than 1% Native American blood, and therefore would come under the ICWA. Thus only another Native American can adopt, or even be a “Foster Parent” She could easily have more Jewish blood than Indian.

  3. Classic example of two wrongs don’t make a right. So Native American children and families were ripped apart in the past, so let’s tear apart and scar foster kids to meet a quota of bureaucrats.

  4. Mr Holden is an ignorant jackass. We are nothing like black people in New York. Our culture is who we are as a people even if we are not born into it we still feel and know that something is miissing. We as a people have had our children taken for hundreds of years, now the white man takes them and assimilates them when before they took and killed them. the law does it’s best to protect the first peoples of this continent.

  5. I agree with Lyn that Mr. Moore does an excellent job of showing how ICWA is used inappropriately. it has turned into a racist law that has a blatant disregard for children. Instead of the welfare of children, it is now looking out solely for Indian tribe welfare.

    With the new BIA guidelines, ICWA has been shown for what it truly is–a law that truly does not care about children’s needs.

    This is a law that has transformed from a useful law to a law that has been used as a yellow card for parents and tribes to prevent children from belonging to permanent loving homes.

    Shame shame!

  6. Please follow the link by the name of the author of this piece: “Johnston Moore is the co-founder and executive director of Home Forever”

    On the Home Forever web site that is linked by Mr. Moore’s name, there is a page which sheds some light on the real reasons Mr Moore has written this piece. Mr Moore is NOT just an adoptive parent sharing his personal story, but rather the director of a political/religious organization who’s stated purpose is the destruction of the Indian Child Welfare Act, and the christian conversion of native foster children.

    Under the “Who Are We” link at the top of his website is a page titled “Biblical Justification for caring for orphans” that speaks for itself.

    There is also a page regarding their desire to repeal the ICWA via a link toward the bottom of the home page that states:

    “At Home Forever, we believe all children deserve permanency and stability, and that a tribe should never have the right to dictate the placement of any child, regardless of that child’s heritage. These children are American citizens and they should have the same rights as any other child, including the right to a safe and stable placement. As such, we have fought and will continue to fight for justice and equality for children of Native heritage.”

    That quote is pretty clear, According to Mr. Moore, Indians can never provide a “safe and stable” home, and Tribes should never be allowed “to dictate the placement of any child, regardless of that child’s heritage.” I think Mr Moore believes native foster children all belong in white christian homes. This is the same superior racist attitude as that of the Spanish Missionaries that initially swept through the Western United States using the cross as a genocidal weapon against uncountable numbers of Native people.

    This political smear piece shows EXACTLY why American Indians, Native Hawaiians, Alaskan Natives, and other indigenous people desperately need laws like the Indian Child Welfare Act.


    • Greg: Moore said nothing on his website or in this article that even implies that “Indians can never provide a ‘safe and stable’ home. You created a straw man argument – twisting the argument to make it easier to attack. What Moore said is that the best interest of each child should be considered and should be more important than any adult’s (or tribe’s) best interest.

    • This is true. The fact that some people out there are continuing to try to disassemble a very needed law that has been vastly disregard is a travesty of justice yet again by those not of Native American ancestry. I am a good loving non abusive mother, have a very nice home in an affluent neighborhood that I purchased with my hard work and education, my daughter has always been a straight A student and is in gifted and talented and along with her younger brother we spend our evening and weekends practicing and playing soccer, but I am also a single Native American mother, which made me a TARGET for child protective services. A couple of unfounded anonymous calls, from evicted tenants, fathers new wives angry that they are being made to pay child support, etc. starts the ball of child protective service rolling with accusations. The very fact that Native American children are STILL TAKEN FROM THEIR PARENTS AT A RATE TEN TIMES THAT OF THEIR WHITE COUNTER PARTS SHOWS THAT THE INDIAN CHILD WELFARE ACT IS NOT ONLY NEEDED, But there needs to be greater enforcement with sanctions to the courts and agencies not following this needed law. To those that would disregard it, I SAY SHAME ON YOU! SHAME ON YOU, FOR YOU KNOW NOT WHAT IT IS LIKE TO HAVE AN UNFOUNDED ACCUSATION, BY A GOVERNMENT AGENCY THAT OPERATES IN SECRECY, THAT IN OKLAHOMA GIVES NO DUE PROCESS AND NO JURY TRIAL. A CHILD PROTECTIVE SYSTEM THAT IS REWARDED FOR PLACING FOSTER CHILDREN WITH TAX PAYER MONEY THROUGH THE TITLE IV-E PROGRAM, THIS REWARD OF MONEY DOES NOT NECESSARILY HAVE TO BE USED FOR THE FOSTER CHILDREN OR THE FOSTER FAMILY AND OFTEN IS NOT, FOR THE STATE ALSO REQUESTS CHILD SUPPORT FROM THE VERY PARENTS IT RIPS THE CHILDREN FROM. THIS SYSTEM IS CORRUPT AND UNCONSTITUTIONAL AND THE INDIAN CHILD WELFARE ACT IS NOT ONLY NEEDED BUT IS NEEDED WITH SANCTIONS AND PENALTIES FOR THOSE THE DISREGARD IT. SHAME ON ALL OF YOU FOR WANTING TO DO AWAY WITH IT.

  7. The abusive use of ICWA will only expand if the proposed BIA guidelines are enacted. I am not an enrolled member of any Tribe, nor was my father, though we were/are eligible. I have significantly more “Indian blood” than Chief Baker, but I have never identified with the tribe, and do not consider myself Native American. My childhood was spent in the UK and I certainly identify with that cultural heritage. Why should I or my children and grandchildren be subjected to the racist, discriminatory theory that the Tribe has an interest in any aspect of my life? Despite the treaties, it is absurd to ascribe to the idea that any tribe should be allowed to exert any influence over my grandchildren’s lives simply because I have Indian ancestors. The best interests cannot be met by the tribe declaring authority over children who have never had any connection to tribal customs or culture. This has nothing to do with enforcing treaties, it is quite simply an effort for tribes to gain members by interjecting their presumed rights under ICWA, thereby allowing themselves to enroll children who would otherwise never have any tribal involvement. Pretty clever way to gain membership, thus collecting larger sums of Federal money, concurrently trampling on the civil rights and the best interests of children.

  8. In theory, the Indian Child Welfare Act (ICWA) makes perfect sense. Children should be with family, relatives, or close friends if something happens that their family cannot raise them. Unfortunately, many of the children to whom ICWA applies are not living in the traditional tribal web of supportive adults. All children should have equal opportunities to the safest, most loving foster home available. When tragedy happens,Indian children have fewer options than non-Indian children under ICWA. The law is fine for the tribe, in that case, but bad for children.

  9. Johnston Moore’s experience with the misapplication of the ICWA is sadly one of many throughout the country. As a citizen of the Choctaw Nation I am appalled at the idea of using a child’s enrollment or eligibility for enrollment in a Native American tribe as the sole or main criteria to remove them from loving and stable homes that fall outside of ICWA’s placement preferences. There are many ways tribes can ensure the survival of the next generation, primarily by focusing on the extreme poverty and alcoholism that is rampant throughout native communities. Today, much unlike 30 years ago when ICWA was passed, Indian children are most often placed into non-Native homes due to a lack of eligible native foster and pre-adoptive homes on and off the reservation. It is my belief that if tribes worked as hard at recruiting native foster homes as they do at removing attached and bonded children from non-Native homes, the issue would largely fix itself. Further, there is absolutely no reputable science that demonstrates Indian children bond differently than other children or that Indian culture is more important to their development than a loving and stable home is. As the adults we have an obligation, no matter our race or political affiliation and no matter how much pride we have in our culture, to make decisions in the best interest of children – not in the best interests of the tribe. Sometimes the best interests of the child and the tribe co-exist, but on the occasion they diverge the choice should be quite simple: children come first.

  10. One addition: as to comments about a few drops of indian blood not making a person indian, I find it interesting how this is used to suit the interest of the dominate culture depending on how it supports our beliefs at the time. When it fits our need a ” drop of blood” makes us something without value, when we value something it can also be irrelevant. For reference. “The one-drop rule is a sociological and legal principle of racial classification that was historically prominent in the United States asserting that any person with even one ancestor of sub-Saharan-African ancestry (“one drop” of black blood)[1][2] is considered to be black (Negro in historical terms). This concept evolved over the course of the 19th century and became codified into law in the 20th century. It was associated with the principle of “invisible blackness” and is an example of hypodescent, the automatic assignment of children of a mixed union between different socioeconomic or ethnic groups to the group with the lower status.[3]”.

    Having said this I don’t want to use your unfortunate use of words about native ancestry to take away from your love for your children and the failure of the system overall to address these competing interests effectively.

    • I think the key takeaway is this:

      “…was historically prominent in the United States…”

  11. Having native ancestery, more specifically being eligible to be an enrolled member of a federally recognized Indian Tribe is not comparable to European ancestery. The United States Government has treaty obligations with Tribal Governments to uphold as well as other legal responsibilities. Protecting the rights of Naitive people and their children is an added area of responsibility. Every child deserves a safe, permanent parent and family. If you are a child who may be eligible for membership in a tribe, the members of the family and tribe must be given preference and timely consideration. Because we underfund and under educate child welfare agencies these responsibilities are often not met. The children, relatives, tribes and caring Foster/adoptive families are then caught in a often painful and harmful fight to determin what is in the best interest of the child and conform with state and federal laws. The most responsible solution is to provide resources and accountability to the systems responsible to fulfill the laws and treaties of the United States. Minimizing or dismissing the value of Native Families and Tribes when it comes to our individual belief systems is not what is considered justice. My wife and children are members of a tribe, I would reject any third party in their attempt to decide for my family what is valued or important about this. A system that was resourced to actually provide high quality, and legally conforming services would be the best solution to this issue. Again I wish your family the best, and value your role as a parent and advocate.

    • Actually, “the most responsible solution” is to provide resources to native communities to combat the poverty, drug abuse and alcoholism that often prevents those who fall into the ICWA placement preferences from being eligible foster and adoptive placements. As an attorney practicing in Oklahoma, my experience is that judges and attorneys are typically aware of ICWA requirements but there are often not enough tribal foster and pre-adoptive homes in which to place Indian children at the time they come into the foster care system. Thus, Indian children are less likely than non-Indian children to find timely permanency and stability in loving homes, because under ICWA the tribe can come in and disrupt a placement months and years after the fact in the event an ICWA placement becomes available. That might be good for tribes, but it is not good for Indian children.

  12. Eric Holder was right. Indian kids are fundamentally no different than Black kids or White or whatever.

    They need loving, stable homes.

    He goes off the rails when he thinks those homes have to be Indian homes.

    Let’s be honest, these kids would not wind up going to non-Indian homes at all except for the FACT that there are simply not enough Indian certified foster families. So rather than let the kids languish, they are fostered out to non-Indian families. Oh the horror! So, if Indians don’t want their kids raised by the dreaded non-Indians, then they need to put up or shut up. Create enough certified foster homes or be glad the state is helping these children and shut up.

    Let’s be honest again. A lot of these “indians” are basically Indian in name only. For example, Chief Bill Baker of the Cherokee Nation is genetically less than 1% Indian.

    Are the kids really missing out on such a “rich” Indian culture when their fellow tribesmen and tribeswomen are basically Caucasians with a few genes from some very distant Indian ancestor? I think not.

    And as for “proud heritage” I hear so often about, here are a few statistics:
    “The official poverty rate on reservations is 28.4 percent, compared with 15.3 nationally. Thirty-six percent of families with children are below the poverty line on reservations, compared with 9.2 percent of families nationally.[5] These figures are absolute poverty rates as determined by the US Census.”

    You owe it to yourself to read the whole article. You will likely find it illuminating like I did but unlike say, the Navajo Reservation where “nearly 40 percent of homes are without electricity.”

    And then of course is the abuse of ICWA itself, such as in this article. If the point of ICWA is about keeping Indian families together, then why is a non-Indian paternal relative the boys had never met allowed to swoop in at the last minute to stop an adoption that the boys themselves were in favor of?

    Or take the case of Adoptive Couple v Baby Girl in which the mother places her child up for adoption due to total lack of paternal involvement then he too at the last minute tries to swoop in and undo what is in the best interest of the child. Even worse, by invoking ICWA, the father who was 2% Indian effectively was given more parental rights than the non-Indian Hispanic mother. Were state law simply followed, it would have been an open and shut case instead of dragging through the courts for years like it did. ICWA tosses Equal Protection under the Constitution out the window.

    ICWA forces states to have one set of standards for children in need of foster care or adoption who are non-Indian and another for those who are Indian. Yes, that is as ludicrous as it sounds.

    Fundamentally, kids are the same. They need loving and stable homes. Repeat it to yourself out loud, as many times as necessary until you get it.

  13. Kevin, I respect your opinion, but I think you missed the point entirely. My point is that my sons’ placement options should not have been limited because of ICWA. If you read the transcripts from the hearings that led to ICWA’s passage (which I would be happy to forward to you), you will see that neither the tribes, nor Congress, were considering kids like mine. The children the tribes were concerned about were being removed from Native families in Native communities. They were not children who were removed from parents in urban settings who didn’t even know the names of the tribes of which they were members.

    I hardly consider the forced limitation of placement options for abused and neglected kids an “opportunity” afforded by their eligibility for membership in a federally-recognized tribe.

    Of course our sons are aware of that part of their heritage (as well as their anglo, germanic and hispanic heritage), as they should be. Interestingly, we reached out to the tribe on more than one occasion since the adoption was finalized and the tribe has chosen to ignore my sons. If anyone cut them off from a possible connection to that part of their culture, it was the tribe itself.

    Your organization’s website states that one of your goals is to:

    “Ensure safe and stable family-based living arrangements for all youth with dependency needs. For youth in out-of-home care due to protection needs, ensure a timely and permanent exit from the formal service system through the development of a resilient and comprehensive network of supportive adults.”

    ICWA worked directly AGAINST placement stability for my sons, and it never should have been applied to them in the first place. Because of ICWA, they were not able to exit the foster system for nearly three years whereas without it, they would have been adopted within a year or so of placement. Did my sons not deserve a “timely and permanent exit” from foster care simply because they are Indian children?

    A five year old girl in Idaho was recently moved out of a home in which she had lived and thrived for more than four years. Is that truly good and healthy for children? I have dozens of stories of other children who have been similarly hurt by ICWA’s misapplication.

    What started out as a well-intentioned law has been twisted and the result is a multitude of disrupted stable placements for many innocent children, a great number of which have little to no connection to any tribe. Again…this is not what Congress or the tribes intended when they first met in April 1974 to discuss the issues that led to ICWA’s passage four years later.

  14. Mr. Moore does an excellent job of showing how ICWA is used inappropriately. Times have changed so much from the days when children were taken away and sent to boarding schools.

    The tribe I belong to requires a blood quantum of 1/4. This, I hope, will keep the tribal government’s hands off any future grandchildren I may have. As an adult I can choose to have whatever connections to the Indian “culture” that I want. I would never choose to be sent to a reservation with someone I don’t know, just because they are members of the same tribe.

    Children should go to families that can give them a healthy, nurturing environment, regardless of their race or culture.

  15. I am nearly speechless after reading this opinion piece. The statements in the piece that defines the opportunity to be a member of a tribe as insignificant because it happened “32 years ago…, and minimizes naitive heritage as being nothing more than “a few drops of blood…” This kind of self serving belief system is the reason we need a strengthened ICWA law and policy. I suspect the behavior by CWS in South Dakota toward native children sounded very similar to the Federal Judge who just ruled against the South Dakota agency and courts. The fact you “won” in the California Court is no real vindication of your belief system, it simply demonstrates how pervasive your beliefs are. In the end I hope your adoption of these children was as positive as possible. I believe that In the future decisions like those in your story will become more rare as these legal cases enforcing treaties with tribes become more common.

    • When those children turn 18 they will already have deep a longing for their true roots, and go search for their tribe. Every Native American feels who they are, even if they only have a drop of Native in them. As soon as they hear a drumbeat they will instinctively know how to dance the dance of our people. The moment they hear a Native American Elder’s wise voice, their spirits will feel at ease. They will feel more at home than they ever felt in their lives. You may have them for now, but they WILL long for more, and they WILL find it, despite your best efforts.

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