Indian Child Welfare Act
Existing Information on Implementation Issues Could Be Used to Target Guidance and Assistance to States
Gao ID: GAO-05-290 April 4, 2005
In the 1960s and 1970s, American Indian children were about six times more likely to be placed in foster care than other children and many were placed in non-American Indian homes or institutions. In 1978, the Congress enacted the Indian Child Welfare Act (ICWA) to protect American Indian families and to give tribes a role in making child welfare decisions for children subject to ICWA. ICWA requires that (1) tribes be notified and given an opportunity to intervene when the state places a child subject to ICWA in foster care or seeks to terminate parental rights on behalf of such a child and (2) children be placed if possible with relatives or tribal families. This report describes (1) the factors that influence placement decisions for children subject to ICWA; (2) the extent to which, if any, placements for children subject to ICWA have been delayed; and (3) federal oversight of states' implementation of ICWA.
Placement decisions for children subject to ICWA can be influenced by how long it takes to determine that ICWA applies, the availability of American Indian foster and adoptive homes, and the level of cooperation between states and tribes. While these factors are unique to American Indian children, other factors can affect decisions similarly for all children. Many states, for example, place all children with relatives if possible and may consider changing placements for all children--regardless of ICWA status--when relatives are identified after initial placement. Our survey showed few differences between children subject to ICWA and other children in how often states had to decide whether to move a child to another home. National data on children subject to ICWA are unavailable; data that were available from four states showed no consistent pattern in how long children subject to ICWA remained in foster care or how often they were moved to different foster homes compared to other children. In general, most children leaving foster care in fiscal year 2003 in the four states were reunified with their families, although children subject to ICWA were somewhat less likely to be reunified or adopted and were somewhat more likely to leave through a guardianship arrangement. ACF does not have explicit oversight responsibility for states' implementation of ICWA and the information the agency obtains through its general oversight of state child welfare systems sometimes provides little meaningful information to assess states' efforts. For example, the ICWA information states were required to provide in their 2004 progress reports varied widely in scope and content and many states did not report on the effect of their implementation efforts. Further, while limited information from ACF's reviews of states' overall child welfare systems indicate some ICWA implementation concerns, the process does not ensure that ICWA issues will be addressed in states' program improvement plans.
Recommendations
Our recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
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GAO-05-290, Indian Child Welfare Act: Existing Information on Implementation Issues Could Be Used to Target Guidance and Assistance to States
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
April 2005:
Indian Child Welfare Act:
Existing Information on Implementation Issues Could Be Used to Target
Guidance and Assistance to States:
GAO-05-290:
GAO Highlights:
Highlights of GAO-05-290, a report to congressional requesters:
Why GAO Did This Study:
In the 1960s and 1970s, American Indian children were about six times
more likely to be placed in foster care than other children and many
were placed in non-American Indian homes or institutions. In 1978, the
Congress enacted the Indian Child Welfare Act (ICWA) to protect
American Indian families and to give tribes a role in making child
welfare decisions for children subject to ICWA. ICWA requires that (1)
tribes be notified and given an opportunity to intervene when the state
places a child subject to ICWA in foster care or seeks to terminate
parental rights on behalf of such a child and (2) children be placed if
possible with relatives or tribal families. This report describes (1)
the factors that influence placement decisions for children subject to
ICWA; (2) the extent to which, if any, placements for children subject
to ICWA have been delayed; and (3) federal oversight of states‘
implementation of ICWA.
What GAO Found:
Placement decisions for children subject to ICWA can be influenced by
how long it takes to determine that ICWA applies, the availability of
American Indian foster and adoptive homes, and the level of cooperation
between states and tribes. While these factors are unique to American
Indian children, other factors can affect decisions similarly for all
children. Many states, for example, place all children with relatives
if possible and may consider changing placements for all
children”regardless of ICWA status”when relatives are identified after
initial placement. Our survey showed few differences between children
subject to ICWA and other children in how often states had to decide
whether to move a child to another home.
National data on children subject to ICWA are unavailable; data that
were available from four states showed no consistent pattern in how
long children subject to ICWA remained in foster care or how often they
were moved to different foster homes compared to other children. In
general, most children leaving foster care in fiscal year 2003 in the
four states were reunified with their families, although children
subject to ICWA were somewhat less likely to be reunified or adopted
and were somewhat more likely to leave through a guardianship
arrangement.
Length of Stay for Children Exiting Foster Care in FY 2003 in Four
States:
[See PDF for image]
[End of figure]
ACF does not have explicit oversight responsibility for states‘
implementation of ICWA and the information the agency obtains through
its general oversight of state child welfare systems sometimes provides
little meaningful information to assess states‘ efforts. For example,
the ICWA information states provided in their 2004 progress reports
varied widely in scope and content and many states did not report on
the effect of their implementation efforts. Further, while limited
information from ACF‘s reviews of states‘ overall child welfare systems
indicate some ICWA implementation concerns, the process does not ensure
that ICWA issues will be addressed in states‘ program improvement
plans.
What GAO Recommends:
GAO recommends that the Department of Health and Human Services‘
Administration for Children and Families (ACF) consider using ICWA
compliance information available through its existing child welfare
oversight activities to target guidance and assistance to states. HHS
disagreed with our recommendation. We continue to believe that ACF
could use the information it gathers to help states improve their ICWA
compliance.
www.gao.gov/cgi-bin/getrpt?GAO-05-290.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Cornelia Ashby at (202)
512-8403 or ashbyc@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Time Needed to Determine a Child's ICWA Status, Availability of
American Indian Foster and Adoptive Homes, and Cooperation between
Tribes and States Influence Placement Decisions for Children Subject to
ICWA:
Limited Data Show No Consistent Differences in Length of Stay or Other
Foster Care Experiences for Children Subject to ICWA and Other
Children:
ACF Obtains Limited Information on ICWA Implementation through Its
Oversight of States' Child Welfare Systems:
Conclusions:
Recommendation for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Scope and Methodology:
Appendix II: Children Exiting Foster Care in Four States, FY 2003:
Appendix III: Comments from the Department of Health and Human
Services:
Appendix IV: Comments from the Department of the Interior:
Appendix V: GAO Contacts and Acknowledgments:
GAO Contacts:
Acknowledgments:
Tables:
Table 1: Main ICWA Provisions:
Table 2: Comparison of Legal Standards for Children Subject to ICWA and
for Children Not Subject to ICWA:
Table 3: States with (1) Highest Percentage of Children Served in
Foster Care Who Are American Indian and (2) Highest Number of American
Indian Children Served in Foster Care, FY 2003:
Table 4: Tribal Membership Requirements for Selected Tribes, as
Reported by Tribal Officials:
Table 5: State Child Welfare Agencies Reporting Challenges Related to
the Availability of Foster Homes, FY 2003:
Table 6: State Child Welfare Agencies Reporting Challenges Related to
the Availability of Homes for Adoption or Long-Term Guardianship, FY
2003:
Table 7: States Explicitly Addressing ICWA Compliance Requirements in
Their 2004 Annual Progress and Services Reports:
Table 8: States Reporting the Use of Activities Suggested by ACF to
Comply with ICWA:
Table 9: Relationship between ICWA Topics Discussed in States' 2004
Annual Progress and Services Reports and Density of States' American
Indian Population:
Table 10: ICWA Concerns Raised in CFSR Final Reports and Program
Improvement Plans by State:
Table 11: Review of Tribal Notification and Placements in Cases
Involving American Indian Children during Child and Family Services
Reviews, 2002-2004:
Table 12: American Indian CFSR Cases Where Item Related to Preserving a
Child's Connections Was Judged "Needing Improvement" During Child and
Family Services Reviews, 2001-2004:
Table 13: Number and Percentage of Children with Unknown Ethnicity Who
Exited Care in FY 2003 for Four States:
Table 14: Criteria for Determining States' Tribal Population Density
Categories:
Table 15: Tribal Population Density Categorization by State:
Figures:
Figure 1: American Indian Population Density by State:
Figure 2: Responses from 25 State Child Welfare Agencies on the
Frequency with Which the State Requested Insufficient Information to
Accurately Determine ICWA Status, FY 2003:
Figure 3: State Child Welfare Agencies Reporting the Frequency with
Which Families Provided Information That Was Too Imprecise to Identify
a Child's Specific Tribe, Requiring States to Send Membership Inquiries
to Multiple Tribes, FY 2003:
Figure 4: Survey Results from 19 Child Welfare Agencies Reporting on
How Often They Face Decisions about Moving a Child from a Foster Home
to Another Placement When a Relative Came Forward Late in a Case:
Figure 5: Survey Results from 19 Child Welfare Agencies Reporting on
How Often They Face Decisions to Move a Child from a Pre-adoptive
Placement to Another Placement When a Relative Came Forward Late in a
Case:
Figure 6: Survey Results from 15 State Child Welfare Agencies Reporting
on How Often They Exempt Children from ASFA's 15 of 22 Provision, FY
2003:
Figure 7: Length of Stay for Children Exiting Foster Care in Four
States, FY 2003:
Figure 8: Survey Results from 16 State Child Welfare Agencies Reporting
How Many Children Remain in Foster Care Longer as a Result of Following
ICWA Procedures, FY 2003:
Figure 9: Survey Results from 10 State Child Welfare Agencies Reporting
on the Estimated Increased Time That Following ICWA Procedures Adds to
a Child's Time in Foster Care, FY 2003:
Figure 10: Survey Results from 22 State Child Welfare Agencies
Reporting on the Effect of Specific ICWA Procedures on the Time to
Place a Child in a Permanent Home Compared to Other Children in Foster
Care, FY 2003:
Figure 11: Survey Results from 19 State Child Welfare Agencies
Reporting on How Often Courts Reject State Requests to Terminate
Parental Rights for Children in Foster Care Because Evidence Does Not
Meet Applicable Legal Standards, FY 2003:
Figure 12: Number of Placements for Children Exiting Foster Care in
Three States, FY 2003:
Figure 13: Percentage of Children Exiting Foster Care in FY 2003 by
Reunification in Four States:
Figure 14: Children Exiting Foster Care through Adoption, FY 2003 in
Four States:
Figure 15: Percentage of Children Exiting Foster Care in FY 2003 by
Guardianship in Four States:
Figure 16: FY 2003 Foster Care Exits in South Dakota:
Figure 17: FY 2003 Foster Care Exits in Washington:
Figure 18: FY 2003 Foster Care Exits in Oregon:
Figure 19: FY 2003 Foster Care Exits in Oklahoma:
Abbreviations:
ACF: Administration for Children and Families:
AFCARS: Adoption and Foster Care Analysis and Reporting System:
APSR: Annual Progress and Services Report:
ASFA: Adoption and Safe Families Act:
BIA: Bureau of Indian Affairs:
CFSR: Child and Family Services Review:
FY: fiscal year:
HHS: Department of Health and Human Services:
ICWA: Indian Child Welfare Act:
PIP: program improvement plan:
United States Government Accountability Office:
Washington, DC 20548:
April 4, 2005:
The Honorable Tom DeLay:
Majority Leader:
House of Representatives:
The Honorable Wally Herger:
Chairman:
Subcommittee on Human Resources:
Committee on Ways and Means:
House of Representatives:
The Honorable Pete Stark:
House of Representatives:
In the 1960s and 1970s, American Indian children were roughly six times
more likely to be separated from their families and placed in foster
care than other children and many were placed in non-American Indian
homes or institutions. A lack of understanding of tribal cultures and
child-rearing practices by state child welfare agencies and courts was
a significant factor in this widespread removal of American Indian
children from their homes. In 1978, the Congress enacted the Indian
Child Welfare Act (ICWA) (Pub. L. No. 95-608) to protect American
Indian families from the unwarranted removal of their children and to
give tribes a role in making child welfare decisions for children
subject to the law. According to the most recently available HHS data,
American Indian children represented about 3 percent of the over
800,000 children who were in foster care in fiscal year 2003. The
Census Bureau estimates that American Indian children comprised 1.8
percent of the total U.S. population under the age of 18 in 2003.
ICWA established criteria for determining whether the tribe or the
state should have custody of a child and make placement decisions.
Specifically, ICWA gives tribes exclusive jurisdiction for tribal
children who reside on a tribal reservation (unless a state has
previously been given jurisdiction by federal law) and gives both
states and tribes jurisdiction for tribal children who do not live on
the reservation. In addition, ICWA established requirements for child
welfare proceedings involving an American Indian child in state
custody. For example, whenever state officials are concerned about the
possible abuse or neglect of a child who is, or is eligible to be, a
tribal member and seek custody of the child, ICWA requires that the
tribe be notified of any court hearings involving the child and given
the right to intervene in the proceedings. In addition, the law
requires that efforts be made to place children subject to ICWA with
relatives or tribal families, unless a good reason exists not to follow
these placement preferences. While ICWA did not explicitly grant any
federal agency oversight authority regarding states' implementation of
ICWA, the Department of Health and Human Services' (HHS) Administration
for Children and Families (ACF) monitors state compliance with federal
child welfare laws.
Proponents of ICWA believe that the law promotes the well-being of
American Indian children by keeping them connected to their families,
tribes, and cultural heritage. Others are concerned that ICWA's
procedural requirements could result in American Indian children
staying longer in foster care than they would in the absence of the
law, working against the goals of more recent child welfare
legislation. In 1997, the Congress enacted the Adoption and Safe
Families Act (ASFA) (Pub. L. No. 105-89) to help states more quickly
move children in foster care to safe and permanent homes. One key
provision of the law requires states, with some exceptions, to file a
petition to terminate parental rights for children who have been in
foster care for 15 of the most recent 22 months--a requirement that
could conflict with the belief expressed by many tribes that a parent's
relationship with a child can never be severed.
Because of your interest in how ICWA affects the foster care
experiences of children subject to the law, as well as how ICWA is
working in conjunction with ASFA, we examined the following: (1) the
factors that influence placement decisions for these children,
particularly as they relate to ASFA's goals of safety, permanency, and
well-being of children; (2) the extent to which delays, if any, have
occurred in the foster or adoptive placement of children subject to
ICWA due to issues related to the implementation of ICWA and how any
such delays have affected children's experiences in care; and (3) the
federal government's role in overseeing states' implementation of ICWA.
We have not included information about children who are under exclusive
tribal jurisdiction because they reside on a reservation.
To answer these questions, we surveyed state child welfare agency
officials in all 50 states and the District of Columbia regarding their
implementation of ICWA and their views on how ICWA's provisions
affected children's experiences in foster care. We received responses
from 47 states and the District of Columbia. We checked for obvious
errors and asked some states follow-up questions, but did not
independently verify states' responses. We also surveyed officials in
all 50 states and the District of Columbia to determine which states
could identify children who were subject to ICWA in fiscal year 2003
using their automated systems. Only five states--Oklahoma, Oregon,
Rhode Island, South Dakota, and Washington--were able to provide these
data. Because Rhode Island had so few children subject to ICWA who left
foster care, we dropped this state from our comparative analysis. To
obtain tribal input, we conducted nine tribal panels in four states and
conducted telephone interviews with nine regional intertribal
organizations. Furthermore, we sent a letter to 591 federally
recognized tribal governments soliciting their input for our study and
received responses from 74 tribes. We visited five states--California,
Oklahoma, Oregon, South Dakota, and Rhode Island--where we interviewed
state and local child welfare agency officials, state court officials,
and officials from at least two tribes (except in Rhode Island, which
has only one federally recognized tribe) to obtain more detailed
information on ICWA implementation. We selected these states to
represent a diversity of geographic locations, child welfare systems,
and state-tribal relationships. Finally, we reviewed applicable laws
and regulations; interviewed headquarters and regional officials from
both ACF and the Department of the Interior's Bureau of Indian Affairs
(BIA); reviewed results from ACF's assessments of state child welfare
agencies, known as Child and Family Services Reviews (CFSR); reviewed
program improvement plans (PIP) states submitted as part of the CFSR
process; and reviewed annual reports that states are required to submit
to ACF about their child welfare systems. We conducted our work between
December 2003 and January 2005 in accordance with generally accepted
government auditing standards. A more detailed discussion of our scope
and methodology appears in appendix I.
Results in Brief:
Decisions regarding the placement of children subject to ICWA as they
enter and leave foster care can be influenced by how long it takes to
determine whether a child is subject to the law, the availability of
American Indian foster and adoptive homes, and the level of cooperation
between states and tribes. According to several child welfare
officials, these factors, which are unique to American Indian children,
can play an important role in placement decisions, including the
characteristics of the foster home in which the child will be placed,
the number of placements a child will have, and the duration of the
stay. For example, if the ICWA status of a child subject to the law is
not known or if no American Indian foster homes are available when such
a child first enters foster care, the state may not be able to place
the child initially with a tribal family and may subsequently move the
child to another foster home. However, other factors can influence
placement decisions similarly for all children regardless of whether
they are subject to the law. For example, ICWA requires that children
subject to ICWA be placed with relatives, unless good reason exists not
to do so, but many states have a similar policy for all children. In
both cases, the state may face decisions about whether to change a
child's initial placement when a relative is identified or comes
forward after a child's initial foster care placement. Our survey
results from 19 states responding to a relevant question showed that
states face decisions to change a child's foster or adoptive placement
with similar frequency, regardless of a child's ICWA status. Decisions
about how children subject to ICWA leave foster care are also
influenced by how well states and tribes work together to blend ICWA
and ASFA requirements for moving a child through the foster care
system. While cultural beliefs of many tribes conflict with ASFA's
provision to move a child to adoption within certain time frames,
results from the 15 states responding to a relevant survey question
showed little difference in how frequently children subject to ICWA
were exempted from ASFA's provision compared to other children.
Data from four states that could identify children subject to ICWA in
their information systems showed no consistent differences when
comparing the length of time they spent in foster care compared to
Caucasian or other minority children who exited foster care in fiscal
year 2003. In two states, these groups of children stayed in foster
care for similar periods of time; in Washington, however, children
subject to ICWA who exited care were less likely than other children to
leave foster care within 2 years, while those in Oregon were more
likely to leave foster care within this time period. While not showing
consistent differences in the length of time in foster care, data
showed some different experiences among children when comparing how
often they were moved to different foster homes or how they left the
foster care system. For example, children subject to ICWA who exited
care lived in a similar number of foster homes as other children in two
of the three states having such data, but experienced a higher number
of placements in Washington. In addition, while the data from the four
states showed that most children who left foster care in 2003 were
reunified with their families, children subject to ICWA were somewhat
less likely to leave foster care through reunification or adoption, and
somewhat more likely to leave foster care through a guardianship
arrangement compared to other children.
While ICWA did not give any federal agency direct oversight
responsibility for states' implementation of the law, ACF reviews some
limited information reported by states under the agency's general
oversight of state child welfare systems and its formal assessments of
these systems in its Child and Family Services Reviews; however, the
information is insufficient for ACF to assess states' efforts to
implement the law's requirements. For example, while states are
required to discuss ICWA implementation in their overall 5-year child
and family services plans and in subsequent annual progress and
services reports, ACF noted in its 2003 guidance that states were
having difficulties reporting on ICWA adherence and reiterated that
states needed to provide a description of the specific measures taken
to comply with the law. While ACF's Child and Family Services Reviews
have identified some ICWA concerns in states, the structure of this
oversight tool was designed to review the overall performance of a
state's child welfare system, rather than any particular law or
program. As a result, it does not ensure that ICWA concerns will be
addressed or that identified problems will be included and monitored in
states' program improvement plans. For example, our review of 51 CFSR
reports showed that 10 reports, generally from states with small
American Indian populations, had no discussion of ICWA implementation,
while 32 raised some concerns with how the law was implemented in the
state, such as caseworkers receiving inadequate ICWA training or not
consistently determining a child's ICWA status. Similarly, our review
of 47 improvement plans provided by ACF as of December 2004 showed that
12 of the 32 states with ICWA implementation concerns identified during
the CFSR review did not report any planned corrective actions.
To improve the usefulness of the information states are required to
provide on their ICWA compliance efforts, we are recommending that the
Secretary of HHS direct the Administration for Children and Families to
review ICWA implementation information available through the CFSRs and
require states to discuss in their annual progress and services reports
any significant ICWA issues not addressed in their program improvement
plans. In addition, ACF should consider using the information on ICWA
implementation in the Child and Family Services Reviews, annual
progress reports, and program improvement plans to target guidance and
assistance to states in addressing any identified issues. HHS disagreed
with our recommendation, stating that it does not have the authority,
resources, or expertise to address GAO's recommendation. Our report
recognizes HHS's limited authority with respect to ICWA and our
recommendation offers a way for the agency to assist states within its
existing authority and resources as part of its current process for
overseeing states' child welfare systems.
Background:
When the Congress enacted ICWA in 1978, it created certain requirements
for child welfare proceedings involving American Indian children and
established a number of protections for American Indian families. This
differential treatment of American Indian children is not based on
race, but on the child's political affiliation as a member or potential
member of a tribe. As shown in table 1, the main ICWA provisions
determine who is subject to the law and to which child custody
proceedings the law applies. These provisions also address jurisdiction
issues, tribal notification of child custody proceedings, and placement
preferences for American Indian children entering foster and adoptive
homes.
Table 1: Main ICWA Provisions:
Definition of a child subject to ICWA.
ICWA defines a child as Indian if he or she is a member of a federally
recognized tribe or if he or she is eligible for tribal membership and
is the biological child of a tribal member. A child who has some
American Indian blood, but not enough to qualify for membership in a
federally recognized tribe, or who is a member only of a state
recognized tribe, is not subject to ICWA.
Definition of child custody proceedings.
ICWA applies to the following child custody proceedings: (1)
involuntary foster care placements; (2) petitions to terminate parental
rights; (3) pre-adoptive placements; and (4) adoptive placements. ICWA
does not apply to custody arrangements arising from divorce proceedings
or placements by the juvenile justice system when a child commits an
act that would be deemed a crime if committed by an adult.
Jurisdiction.
American Indian tribes with active tribal courts have exclusive
jurisdiction over child welfare proceedings for an American Indian
child who resides on the tribal reservation.
States and tribes share jurisdiction over child welfare proceedings
involving a child subject to ICWA who does not reside on the tribal
reservation. If a tribe or parent requests that a child custody
proceeding be transferred to the jurisdiction of the tribe, the
proceeding should be transferred to tribal jurisdiction, unless either
parent objects to the transfer or good cause exists to not transfer the
case. The tribal court has the right to decline any transfer request.
Notification and intervention.
A tribe must be notified about any involuntary child welfare proceeding
in state courts involving a child subject to ICWA and has the right to
intervene in such cases.
A tribe also has the right to intervene in cases in which a parent
voluntarily relinquishes custody of a child subject to ICWA, but ICWA
does not specifically require that tribes be notified about these
cases.
Placement in foster care.
A child subject to ICWA cannot be placed in foster care unless clear
and convincing evidence exists that continued custody by the parent is
likely to result in serious damage to the child.
Placement preferences[A].
An American Indian child placed in foster care or a pre-adoptive
placement shall be placed in the least restrictive, most family-like
setting in which the child's special needs, if any, may be met. The
child shall be placed within reasonable proximity to his or her home
and preference shall be given, absent good cause to the contrary, to a
placement with:
1. a member of the child's extended family;
2. a foster home licensed, approved, or specified by the tribe;
3. an American Indian foster home licensed or approved by an authorized
non-Indian licensing authority; or;
4. an institution approved by a tribe or operated by an American Indian
organization that has a program suitable to meet the child's needs.
When placing an American Indian child for adoption, preference shall be
given, absent good cause to the contrary, to a placement with:
5. a member of the child's extended family,
6. other member's of the child's tribe, or;
7. other American Indian families.
Source: Pub. L. No. 95-608.
[A] States are prohibited by law from delaying or denying a foster or
adoptive placement in order to place a child with a family of the
child's race or cultural background, but children subject to ICWA are
excluded from this prohibition. 42 U.S.C. § 1996b.
[End of table]
ICWA also established other requirements for children subject to the
law that differ from the requirements that apply to other children in
foster care. As shown in table 2, ICWA requires states to provide
active efforts to keep American Indian families together and to use
more stringent legal standards for placing an American Indian child in
foster care and terminating parental rights.
Table 2: Comparison of Legal Standards for Children Subject to ICWA and
for Children Not Subject to ICWA:
To Prevent Break Up of Family and/or To Reunify Family;
Standard for Children Subject to ICWA: ICWA requires states to make
"active efforts" to provide services designed to prevent the break up
of an American Indian family before an American Indian child can be
placed in foster care or the parental rights of an American Indian
parent can be terminated. However, the state can place an American
Indian child in foster care if the child is in immediate danger and
then must make active efforts to reunify the child with the family;
Standard for Children Not Subject to ICWA: To receive foster care
maintenance payments under Title IV-E of the Social Security Act,
states must provide reasonable efforts to prevent the need for removing
a child from his or her family and to reunify a child in foster care
with his or her family. States are allowed to bypass reasonable efforts
in certain egregious situations, such as when a parent has subjected a
child to torture or sexual abuse.
To Terminate Parental Rights;
Standard for Children Subject to ICWA: Termination of parental rights
cannot be granted unless the evidence indicates beyond a reasonable
doubt that continued custody is likely to result in serious damage to
the American Indian child;
Standard for Children Not Subject to ICWA: State statutes have a
variety of different legal grounds for terminating parental rights on
behalf of non-American Indian children. Four of the five states we
visited required that the statutory grounds be proven by clear and
convincing evidence, a lower standard than required by ICWA.
Source: Pub. L. No. 95-608, Title IV-E of the Social Security Act, and
state laws.
Note: Beyond a reasonable doubt is the highest possible evidence
standard and requires proof of such a convincing character that a
person would be willing to rely and act upon it without hesitation in
the most important of his or her own affairs. To establish a finding by
clear and convincing evidence, which is the next highest evidence
standard, requires proof that the particular facts are highly probable
or create a firm belief that the allegation in question is true.
[End of table]
ICWA also authorizes grant funding to American Indian tribes for
operating child and family service programs. In fiscal year 2004, BIA
administered an estimated $10.9 million in ICWA grants to tribes. These
grants generally range from about $26,000 to $750,000, with the average
being $60,000.
Interaction of ICWA with ASFA:
While ICWA requires states to provide active efforts to reunify
families, ASFA requires states to move children more quickly through
the child welfare system. Enacted in 1997, ASFA created fundamental
changes in the nation's child welfare system and established two major
goals for all children: (1) to make a child's safety the most important
consideration in child welfare decisions and (2) to compel child
welfare systems to make timely decisions regarding adoption or other
permanent arrangements for children who cannot safely return home. One
key ASFA provision (the "15 of 22" provision) requires states to file a
petition to terminate parental rights if a child has been in foster
care for 15 of the most recent 22 months unless (1) it is not in the
child's best interests, (2) the state has not provided necessary
reunification services, or (3) the child is in the care of a relative.
Key Participants in State Child Welfare Systems:
State and local child welfare agencies and courts that hear child
welfare cases all play a role in making placement decisions for
children in foster care. Child welfare caseworkers receive and
investigate reports of suspected maltreatment and recommend and locate
appropriate social services. They also make recommendations to the
court about whether a child should be removed from home, where the
child should be placed, and where the child will ultimately reside. The
judge assesses the information presented about a case and makes the
placement decisions for children. For cases involving children subject
to ICWA, the judge will review the recommendations of all parties
involved in a case--the child welfare agency, the parents, the tribe,
and any advocate appointed to represent the child's best interests--and
determine the best placement option for the child.
When placing a child in foster care, the state must ensure that the
foster family can provide a safe environment that can meet a child's
needs. To do this, each state develops its own standards and procedures
for licensing foster homes. For example, a state may require foster
parents to be emotionally stable and have no significant criminal or
child abuse history. In addition, a state may require a home to meet
certain physical requirements for safety purposes, such as having a
smoke detector and being free of health and fire hazards. ICWA does not
require American Indian homes to be licensed by the state. However, to
be eligible to receive foster care maintenance payments under Title IV-
E, families must meet state foster care standards or, for homes on or
near Indian reservations, licensing standards established by the tribe.
Federal Oversight of Child Welfare Programs:
ACF is responsible for the administration and oversight of federal
funding to states for child welfare services under Titles IV-B and IV-
E of the Social Security Act. Title IV-B authorizes funds to states to
provide a wide array of services to prevent the occurrence of abuse and
neglect and to prevent the need for foster care placements. Some tribes
are eligible for Title IV-B grants as well. Title IV-E provides an open-
ended individual entitlement for foster care maintenance payments to
cover a portion of the food, housing, and incidental expenses for all
foster children whose parents meet certain federal eligibility criteria
and for whom certain judicial findings have been made. States can also
be reimbursed for related administrative and child placement costs,
including the recruitment and licensing of foster homes. Title IV-E
also provides payments to adoptive parents of eligible children with
special needs that can make it difficult for a child to be adopted,
such as emotional, physical, or mental disabilities; emotional
disturbance; being older than an age specified by the state; or being a
member of a minority race. Under current law, ACF cannot provide Title
IV-E funds directly to tribes. Some states have, however, established
agreements with tribes to distribute Title IV-E funds to the tribes for
tribal children who meet the Title IV-E eligibility requirements. As of
June 2001, according to one study, 14 states and 75 American Indian
tribal governments had Title IV-E agreements in place
nationally.[Footnote 1]
To receive funds from Titles IV-B or IV-E, a state child welfare agency
(or a tribe receiving Title IV-B funds) must submit the following
reports, which are reviewed by ACF regional staff for compliance with
all reporting requirements:
* A 5-year child and family services plan (5-year plan) that describes
the state's goals and objectives with regard to the needs and well
being of children and families and the scope and adequacy of services
available for children and families.
* A description, developed in consultation with tribes and tribal
organizations, of the specific measures taken by the state to comply
with ICWA, which must be included in the state's 5-year plan, as
required by amendments to the Social Security Act enacted in 1994 (Pub.
L. No. 103-432).
* An annual progress and services report (APSR) to discuss the state's
progress in meeting the goals outlined in its 5-year plan and to revise
the 5-year plan goals if necessary.
In 2000, ACF established a new federal review system to monitor state
compliance with Titles IV-B and IV-E requirements. One component of
this system is the CFSR, which assesses state performance in achieving
safety and permanency for children, along with well-being for children
and families. The CFSR process includes a self-assessment by the state,
an analysis of state performance in meeting national standards
established by HHS, and an on-site review by a joint team of federal
and state officials. Based on a review of statewide data, interviews
with community stakeholders and some families receiving services, and a
review of a sample of 50 child welfare cases, HHS determines whether a
state achieved substantial conformity with: (1) outcomes related to
safety, permanency, and well-being, such as keeping children protected
from abuse and neglect and achieving permanent, stable living
situations for children; and (2) key systemic factors, such as having
an adequate case review system and an adequate array of services.
States are required to develop program improvement plans to address
identified shortcomings. ACF conducted its first state review in March
2001 and completed on-site reviews in all 50 states and the District of
Columbia by March 2004. States found to be operating in substantial
conformity with Titles IV-B and IV-E must complete a full CFSR every 5
years, while states that are not in substantial conformity must begin a
full CFSR review two years after approval of their program improvement
plans.
ICWA provides BIA with responsibility for administering grants to
tribes for a variety of child welfare purposes and assisting states in
identifying the tribal affiliation of a child upon request. However,
BIA has no oversight authority in terms of how state child welfare
agencies or state courts implement the law for American Indian children
in state custody.
American Indian Demographics and Tribal Membership Requirements:
According to Census estimates for 2003, approximately 4.4 million
people in the United States report having some American Indian
heritage, comprising 1.5 percent of the total population. This
population includes individuals who may not be members or eligible for
membership in a tribe, as well as individuals who are members of state
recognized tribes. As shown in figure 1, the American Indian population
is heavily concentrated in the West. In some cases, tribal members live
in the same state as their tribe's reservation, and may live on or near
the reservation. In other cases, tribal members live in states other
than those where the tribe's lands are located. In other words, while a
tribe's land may be located in a particular state, tribal members may
live in many states around the country.
Figure 1: American Indian Population Density by State:
[See PDF for image]
[End of figure]
ACF collects information on the number of American Indian children in
state foster care in its Adoption and Foster Care Analysis and
Reporting System (AFCARS); however, states are not required to identify
children who are subject to ICWA. According to the most recent AFCARS
data provided by ACF, the percentage and number of American Indian
children reported in foster care in fiscal year 2003 varied
considerably from state to state.[Footnote 2] In 23 states, for
example, American Indian children represented less than 1 percent of
all children served in foster care in fiscal year 2003. In five states,
however, at least one-quarter of the foster care population was
American Indian, as shown in table 3. In addition, while Oklahoma and
California reported serving over 3,000 American Indian children in
foster care in 2003, Delaware, Vermont, and the District of Columbia
reported serving fewer than five American Indian children each.
Table 3: States with (1) Highest Percentage of Children Served in
Foster Care Who Are American Indian and (2) Highest Number of American
Indian Children Served in Foster Care, FY 2003:
Percentage of children served in foster care who were American Indian:
State: Alaska; Percentage: 62%;
State: South Dakota; Percentage: 61%;
State: Montana; Percentage: 35%;
State: North Dakota; Percentage: 30%;
State: Oklahoma; Percentage: 25%;
State: Minnesota; Percentage: 15%;
State: New Mexico; Percentage: 13%;
State: Washington; Percentage: 11%;
State: Nebraska; Percentage: 9%;
State: Idaho; Percentage: 9%.
Number of American Indian children served in foster care:
State: Oklahoma; Number: 3,689.
State: California; Number: 3,646.
State: Minnesota; Number: 2,292.
State: Alaska; Number: 1,735.
State: Washington; Number: 1,690.
State: South Dakota; Number: 1,603.
State: Oregon; Number: 1,219.
State: Montana; Number: 1,028.
State: Nebraska; Number: 825.
State: Arizona; Number: 798.
Source: AFCARS data from HHS's Children's Bureau.
[End of table]
Not all American Indian children who enter foster care are subject to
ICWA. In Washington, for example, of the 1,690 American Indian children
identified in foster care in fiscal year 2003, the state reported that
about 450 were subject to ICWA. American Indian children are only
subject to ICWA if they are members of, or eligible for membership in,
1 of the over 500 federally recognized tribes. Federal recognition
means that a tribe is formally recognized as a quasi-sovereign entity
with a government-to-government relationship with the United States.
With federal recognition, tribes become eligible to participate in
federal assistance programs and can be exempt from state and local
jurisdiction. About 40 other tribes are recognized by individual
states, while other American Indian communities are not formally
recognized as tribes by the United States or any individual state;
children from these tribes are not subject to ICWA. Thirty-four states,
most of which are located in the western portion of the United States,
have federally recognized tribes. Five states, generally located in the
eastern half of the country, have state recognized tribes, but no
federally recognized tribes. Twelve states, also in the eastern half of
the country, have no federally or state recognized tribes.
As quasi-sovereign entities, tribes establish their own membership
requirements, which can vary considerably, as shown in table 4. Two
common conditions for enrollment are lineal descendency from a person
named on a tribe's historical membership list (sometimes known as a
"base roll") or a minimum amount of tribal blood (known as blood
quantum). For example, to be eligible for membership in the Navajo
Nation, individuals must have at least ¼ Navajo blood, meaning that
they may have one grandparent who is full-blooded Navajo or two
grandparents who are each half Navajo. Other conditions may include
residing on the tribe's reservation or having continued contact with
the tribe.
Table 4: Tribal Membership Requirements for Selected Tribes, as
Reported by Tribal Officials:
Tribe: Mooretown Rancheria (California);
Requirement: Descendency from 1 of 3 individuals responsible for
distributing tribal assets when the tribe was terminated in 1958
(federal recognition of the tribe was subsequently restored in 1983).
Tribe: Morongo Band of Cahuilla Mission Indians of the Morongo
Reservation (California);
Requirement: A 1/8 blood quantum and one parent enrolled in the Morongo
tribe.
Tribe: Cherokee Nation of Oklahoma;
Requirement: Descendency from 1899- 1906 base rolls.
Tribe: Pawnee Indian Tribe of Oklahoma;
Requirement: A 1/8 blood quantum.
Tribe: Confederated Tribes of the Grand Ronde Community of Oregon;
Requirement: A 1/16 blood quantum and a parent enrolled at the time of
the child's birth and at the time the child applies for enrollment
(unless the parent is deceased).
Tribe: Confederated Tribes of the Umatilla Reservation (Oregon);
Requirement: One enrolled parent or grandparent and ¼ blood quantum in
any federally recognized tribe.
Tribe: Narragansett Indian Tribe (Rhode Island)[A];
Requirement: Descendency from 1880-1884 base roll.
Tribe: Crow Creek Sioux Tribe of the Crow Creek Reservation (South
Dakota);
Requirement: A ¼ blood quantum in a Sioux tribe and some Crow Creek
blood.
Tribe: Rosebud Sioux Tribe of the Rosebud Indian Reservation (South
Dakota);
Requirement: A ¼ blood quantum in a Sioux tribe and one parent is a
member of the tribe.
Source: GAO interviews with tribal officials.
[A] Since 1995, the tribe has closed its enrollment to all individuals
older than 12 months.
[End of table]
Tribes may change their tribal membership criteria, thereby changing a
child's eligibility for ICWA. For example, an official from the Pawnee
Indian Nation said that the tribe had recently lowered its blood
quantum requirement from 1/4 to 1/8. Since 1995, the Narragansett tribe
has closed its enrollment for most individuals.
Time Needed to Determine a Child's ICWA Status, Availability of
American Indian Foster and Adoptive Homes, and Cooperation between
Tribes and States Influence Placement Decisions for Children Subject to
ICWA:
Placement decisions for children subject to ICWA--including where a
child should live upon entering foster care, how long the child should
remain in care, and where the child should live permanently---can be
influenced by the length of time it takes to determine a child's ICWA
status, the availability of American Indian foster and adoptive homes,
and how states and tribes work together to follow the provisions of
ICWA and ASFA. These factors are unique to children subject to ICWA,
but other factors--such as the timeliness in identifying relative
caregivers and the availability of foster and adoptive homes--can
influence placement decisions similarly for children who are not
subject to the law. Similarly, while the cultural beliefs of many
tribes may conflict with state implementation of ASFA provisions to
move a child to adoption within certain time frames, our survey results
from 15 states responding to a relevant question showed little
difference in how frequently children subject to ICWA were exempted
from ASFA's provision compared to other children.
Identification of a Child's ICWA Status Can Be Challenging and Can
Influence Placement Decisions:
Before a child can be placed in accordance with ICWA's placement
preferences, the state has to identify the child as being subject to
the law. A number of state and tribal officials emphasized the
identification of a child's ICWA status as an important factor in
placement decisions, while some state officials also reported
challenges in making such determinations in a timely manner. According
to several child welfare officials, determining that a child is subject
to ICWA after initial placement decisions have already been made can
sometimes lead to a child having more placements or spending more time
in foster care, because, as some of these officials explained, they
have to process the new information about a child's ICWA status,
rethink decisions already in place, and possibly make new placement
decisions.
States report that they are making efforts to encourage the appropriate
determination of children's ICWA status. The five states we visited
have policies and procedures intended to ensure that social workers
properly identify children subject to ICWA. For example, all of these
states except Rhode Island have special forms to help them collect
information about a child's family history needed by tribes to
determine a child's tribal membership status. Many, although not all,
state child welfare officials surveyed also reported having policies
and procedures to help social workers identify children subject to
ICWA. Of the 48 states responding to our survey, 33 indicated that they
provided ICWA guidelines to social workers, while 27 indicated that
they provided mandatory ICWA training for newly hired social workers.
However, tribes and states report that the appropriate determination of
a child's ICWA status does not always occur. Several tribal
representatives we spoke with reported that state caseworkers do not
always accurately determine a child's ICWA status, noting that
appropriate identification varies widely from state to state and among
localities within a state. Similarly, our survey of state child welfare
officials indicates that state child welfare workers sometimes fail to
collect the information necessary to accurately identify whether a
child is subject to ICWA (see fig. 2). Of the 25 state child welfare
agencies that could answer the relevant survey question, 7 reported
that they often requested insufficient information to accurately
identify a child's tribal membership, while 12 states reported that
this happened on occasion. Child welfare officials and tribal
representatives from California reported that some caseworkers may
incorrectly assume that children with certain characteristics--such as
blond hair or blue eyes or a Hispanic surname--are not subject to ICWA
and do not ask if they have American Indian heritage.
Figure 2: Responses from 25 State Child Welfare Agencies on the
Frequency with Which the State Requested Insufficient Information to
Accurately Determine ICWA Status, FY 2003:
[See PDF for image]
Notes: The survey question was as follows: In fiscal year 2003, how
often did your state experience any of the following circumstances
related to identifying a child's ICWA status: state requested
insufficient information to accurately identify a specific tribe?
Eighteen states responded "data not available" or "do not know."
[End of figure]
Child welfare officials told us that their ability to identify a
child's ICWA status can depend on the receipt of complete information
from families and the timely response from tribes to states' inquiries
about a child's tribal affiliation. They noted that families are not
always forthcoming with information about a child's American Indian
heritage, either because they lack the information or are reluctant to
share it. When families provide imprecise information, social workers
may need to contact multiple tribes to try to confirm a child's ICWA
status. As shown in figure 3, 13 states reported that family members
often provided imprecise information about their American Indian
heritage and 12 states reported often contacting multiple tribes to
determine whether a child was subject to ICWA.
Figure 3: State Child Welfare Agencies Reporting the Frequency with
Which Families Provided Information That Was Too Imprecise to Identify
a Child's Specific Tribe, Requiring States to Send Membership Inquiries
to Multiple Tribes, FY 2003:
[See PDF for image]
Notes: The survey questions were as follows: In fiscal year 2003, how
often did your state experience any of the following circumstances
related to identifying a child's ICWA status: (1) family or caregiver
provided imprecise information to identify any specific tribe; and (2)
family or caregiver provided imprecise information, requiring state to
notify multiple tribes to determine if child was eligible for
membership in one of them?
Eighteen states responded "data not available" or "do not know" about
the inability to identify a specific tribe, while 19 reported "data not
available" or "do not know" about the need to send inquiries to
multiple tribes.
[End of figure]
During our site visits, child welfare officials provided several
reasons why parents are sometimes unable to provide information about a
child's American Indian heritage. In some cases, according to an
Oklahoma official, the mother may not know that the father is American
Indian. A South Dakota social worker explained that a mother may not
provide information about paternal relatives if she does not want the
child placed with them. In other cases, officials from California and
Oklahoma told us that families report that a relative may have American
Indian heritage, but they do not know which tribe, making it difficult
for child welfare workers to determine which tribe to contact. A county
court worker in California, for example, said she has had parents who
claimed some Sioux heritage, but did not know which Sioux tribe was
involved. In these cases, she said she has to send inquiries to 16
tribes to determine if the child is eligible for membership in any of
them. Social workers can ask BIA to assist them in identifying the
appropriate tribe of a child; however, BIA does not have tribal
membership lists and both tribal and state officials explained that BIA
can do little to help identify a child's tribal affiliation.
Once a social worker believes a child might be American Indian, an
inquiry is usually sent to the tribe with whom the child might be
affiliated to determine if the child is a tribal member or eligible for
membership. Officials from all of our site visit states except Rhode
Island told us that tribes vary in how quickly they respond to
inquiries about a child's membership status. They noted that some
tribes do not respond to inquiries in a timely manner, which can
increase the time it takes to determine whether the child is subject to
ICWA, although they acknowledged that some tribes lack staff and
resources to respond more promptly. When a tribe does not respond,
child welfare staff have to make additional phone calls or send
additional letters to encourage the tribe to provide the requested
information. However, several tribal officials reported that some ICWA
inquiries from child welfare agencies do not contain sufficient
information for the tribe to determine a child's membership status.
They explained, for example, that tribes may need to know the names and
birthdates of a child's family members in order to determine if a child
is eligible for tribal membership, but the child welfare agency does
not always obtain this information from families and include it in
their inquiry letters.
Even if sufficient information is gathered to determine that a child
meets ICWA's requirements, some state courts may invoke the "existing
Indian family exception" to determine that a child is not subject to
the law. Some judges have ruled that the law does not apply when
neither the child nor the child's parents have maintained significant
social, cultural, or political ties with the tribe, although ICWA does
not include this language. Without this exception, these judges reason
that ICWA is unconstitutionally discriminatory because it treats
American Indian children differently based solely on their ethnicity,
as opposed to the family's political affiliation with the tribe. While
courts in some states use this exception, courts in other states have
explicitly rejected it, reasoning that such an exception is not
included in the language of ICWA and that it undermines ICWA's purpose
by allowing state courts to impose their own subjective values in
determining what constitutes American Indian culture and who is an
American Indian. Several tribal officials stated that this exception
hinders the effective implementation of ICWA because state courts can
invoke the doctrine to disregard placement preferences under the act.
Legislation was introduced in the Congress to amend ICWA to eliminate
this exception, but it was not enacted.
Availability of American Indian Foster and Adoptive Homes Is a Key
Factor Influencing Placement Decisions for Children Subject to ICWA:
State and tribal officials noted that the availability of American
Indian foster and adoptive homes is a key factor in making placement
decisions for children subject to ICWA that follow the law's placement
preferences. When these children are initially placed with non-American
Indian families, states and tribes have to make difficult decisions
about whether to move the child if an American Indian foster or
adoptive family later becomes available. However, many states have
policies to place children with relatives whenever possible and,
according to officials in two states, they face similar decisions about
changing placements for children who are not subject to ICWA when
relative caregivers become available after a child's initial placement
with another foster family.
Availability of American Indian Foster and Adoptive Homes:
The availability of American Indian foster and adoptive homes
influences whether states place children subject to ICWA with a tribal
family, as preferred by law. However, child welfare officials in the
five states we visited described having a shortage of American Indian
homes because families do not meet state licensing standards or pass
state background checks required to become eligible for federal
financial support in caring for a foster child. For example, a social
worker in a local child welfare office in California told us that some
American Indian homes that do not meet the physical standards required
of state licensed foster homes, such as having no more than two
children share a bedroom or ensuring that each child has a separate
bed, are not approved as foster homes. Several tribal officials said,
however, that state licensing standards do not always recognize the
communal living situations common in American Indian communities and
exclude appropriate American Indian caregivers. State officials in
South Dakota and California also noted that tribes can license foster
parents themselves using their own licensing standards.
Similarly, child welfare officials said that some American Indian
families have previous criminal convictions or reports of possible
child abuse or neglect, which preclude the state from approving them as
possible foster or adoptive parents. Several tribal officials, however,
stated that criminal background checks sometimes disqualify an
otherwise appropriate American Indian relative from caring for a child
subject to ICWA. In some cases, these offenses occurred many years ago
and do not impact an individual's fitness to serve as a potential
foster or adoptive parent. A child welfare official we visited in
Oregon noted that these background checks may exclude potential
caretakers. Officials from Rhode Island and California stated that they
will make exceptions in certain cases for homes that do not pass the
required background check. For example, potential foster parents in
California with a criminal background (that does not include serious
offenses such as murder, kidnapping, or rape) may be approved if they
prove they are rehabilitated. State child welfare officials and others
have previously noted that background checks required by the federal
government sometimes exclude otherwise appropriate caregivers without
regard to whether they are American Indian or of other races.
Tribal officials described other obstacles to recruiting American
Indian foster families. Several tribal officials told us that American
Indian families sometimes view the state licensing process as intrusive
and insensitive. Child welfare officials in South Dakota told us that
they believe that some American Indian families distrust state agencies
and are not willing to complete the process to become approved
caretakers. One of these officials also said that some American Indian
families are already providing informal kinship care for American
Indian children and cannot care for additional foster children. In
addition, a few tribal officials said that states rely on the tribe to
find relatives and tribal foster families for children subject to ICWA;
however, some officials stated that tribes have limited resources to
conduct such searches and to recruit tribal foster families themselves.
Some tribal officials pointed out that, without direct access to Title
IV-E funds, many tribes do not have the resources to reimburse foster
families. ICWA authorizes federal grants to tribes for providing child
welfare services, including licensing foster homes, but several tribal
child welfare officials said that they need funds directed for this
specific purpose to efficiently recruit American Indian foster homes.
On our survey, more states reported difficulties locating American
Indian foster homes for children subject to ICWA compared to locating
other foster homes (see table 5). Of the state child welfare agencies
responding to a relevant survey question, 15 reported that an American
Indian foster home was often not available for the placement of a child
subject to ICWA, while 6 states reported that they often did not have
any type of foster home available for these children. Eight states
faced similar problems finding appropriate foster homes for children
who were not subject to ICWA.
Table 5: State Child Welfare Agencies Reporting Challenges Related to
the Availability of Foster Homes, FY 2003:
Extremely often;
For children subject to ICWA: American Indian foster home was not
available: 2;
For children subject to ICWA: Foster home (of any background) was not
available: 0;
For children not subject to ICWA: Foster home was not available: 0.
Very often;
For children subject to ICWA: American Indian foster home was not
available: 8;
For children subject to ICWA: Foster home (of any background) was not
available: 3;
For children not subject to ICWA: Foster home was not available: 2.
Moderately often;
For children subject to ICWA: American Indian foster home was not
available: 5;
For children subject to ICWA: Foster home (of any background) was not
available: 3;
For children not subject to ICWA: Foster home was not available: 6.
On occasion;
For children subject to ICWA: American Indian foster home was not
available: 6;
For children subject to ICWA: Foster home (of any background) was not
available: 11;
For children not subject to ICWA: Foster home was not available: 12.
Seldom, if ever;
For children subject to ICWA: American Indian foster home was not
available: 2;
For children subject to ICWA: Foster home (of any background) was not
available: 8;
For children not subject to ICWA: Foster home was not available: 6.
Total states that could answer the question;
For children subject to ICWA: American Indian foster home was not
available: 23;
For children subject to ICWA: Foster home (of any background) was not
available: 25;
For children not subject to ICWA: Foster home was not available: 26.
Do not know or data not available;
For children subject to ICWA: American Indian foster home was not
available: 19;
For children subject to ICWA: Foster home (of any background) was not
available: 17;
For children not subject to ICWA: Foster home was not available: 16.
Source: GAO survey of state child welfare agencies.
Note: The survey question was as follows: How frequently in fiscal year
2003 did your state encounter each of the following challenges: (a)
appropriate foster home (of any ethnic background) for an ICWA child
was not available; (b) appropriate American Indian foster home for an
ICWA child was not available; and (c) appropriate foster home for a non-
ICWA child was not available?
[End of table]
Of the state child welfare agencies responding to a relevant survey
question, 14 reported that American Indian homes for adoption or long-
term guardianship were often not available, and an additional 8 states
reported that they often did not have any type of home available, as
shown in table 6. However, 9 states faced similar problems finding
homes for adoption or guardianship of children who were not subject to
ICWA.
Table 6: State Child Welfare Agencies Reporting Challenges Related to
the Availability of Homes for Adoption or Long-Term Guardianship, FY
2003:
Extremely often;
For children subject to ICWA: American Indian adoptive or long-term
guardianship home was not available: 2;
For children subject to ICWA: Adoptive or long-term guardianship home
(of any background) was not available: 0;
For children not subject to ICWA: Adoptive or long-term guardianship
home was not available: 0.
Very often;
For children subject to ICWA: American Indian adoptive or long-term
guardianship home was not available: 4;
For children subject to ICWA: Adoptive or long-term guardianship home
(of any background) was not available: 1;
For children not subject to ICWA: Adoptive or long-term guardianship
home was not available: 1.
Moderately often;
For children subject to ICWA: American Indian adoptive or long-term
guardianship home was not available: 8;
For children subject to ICWA: Adoptive or long-term guardianship home
(of any background) was not available: 7;
For children not subject to ICWA: Adoptive or long-term guardianship
home was not available: 8.
On occasion;
For children subject to ICWA: American Indian adoptive or long-term
guardianship home was not available: 5;
For children subject to ICWA: Adoptive or long-term guardianship home
(of any background) was not available: 9;
For children not subject to ICWA: Adoptive or long-term guardianship
home was not available: 13.
Seldom, if ever;
For children subject to ICWA: American Indian adoptive or long-term
guardianship home was not available: 4;
For children subject to ICWA: Adoptive or long-term guardianship home
(of any background) was not available: 7;
For children not subject to ICWA: Adoptive or long-term guardianship
home was not available: 5.
Total states that could answer the question;
For children subject to ICWA: American Indian adoptive or long-term
guardianship home was not available: 23;
For children subject to ICWA: Adoptive or long-term guardianship home
(of any background) was not available: 24;
For children not subject to ICWA: Adoptive or long-term guardianship
home was not available: 27.
Do not know or data not available;
For children subject to ICWA: American Indian adoptive or long-term
guardianship home was not available: 20;
For children subject to ICWA: Adoptive or long-term guardianship home
(of any background) was not available: 18;
For children not subject to ICWA: Adoptive or long-term guardianship
home was not available: 17.
Source: GAO survey of state child welfare agencies.
Note: The survey question was as follows: How frequently in fiscal year
2003 did your state encounter each of the following challenges: (a)
appropriate adoptive or long-term guardianship home (of any ethnic
background) for an ICWA child was not available; (b) appropriate
American Indian adoptive or long term guardianship home for an ICWA
child was not available; (c) appropriate adoptive or long-term
guardianship home for a non-ICWA child was not available?
[End of table]
The availability of a foster home that provides services for a special
needs foster child can also influence the placement of a child subject
to ICWA. Some tribal and child welfare officials noted that some
children are placed with non-American Indian families when they have
special needs and require services that cannot be provided by most
tribal homes. As social workers in a South Dakota child welfare office
told us, tribes often agree that children with special needs, such as
those stemming from fetal alcohol syndrome or reactive attachment
disorder (a complex psychiatric illness that can affect young children
and is characterized by serious problems in emotional attachments to
others) should be placed within reach of the services they need, even
if it means placing them with non-American Indian families.
Decisions to Change a Child's Placement:
A child subject to ICWA may be placed with a non-American Indian family
if relatives or American Indian foster or adoptive homes are not
available or if the child's ICWA status was not determined when the
child first entered foster care. If, after a placement decision has
been made, the state learns that a child is subject to ICWA or that a
relative or an American Indian foster or adoptive home has become
available, the state and tribe face the difficult decision regarding
whether to change a child's foster or pre-adoptive placement. Late
identification of relatives also occurs for non-American Indian
children. Almost all states, including the five we visited, have a
policy to place all children with relatives, if possible.[Footnote 3]
Child welfare officials in three of these states said that relatives
are sometimes reluctant to care for children initially and may only
come forward once the state stops its efforts to reunify the family and
begins to seek an adoptive family. Officials in these three states also
noted that families coming forward later can occur with relatives of
all children, regardless of their ICWA status.
Our survey data indicate that states face decisions to change
placements with similar frequency for children subject to ICWA and
those not subject to ICWA. As shown in figure 4, 8 of the 19 states
responding to a relevant question reported often having to make
decisions about whether to keep children subject to ICWA with their
current foster family compared to 9 states often facing these decisions
for other children.
Figure 4: Survey Results from 19 Child Welfare Agencies Reporting on
How Often They Face Decisions about Moving a Child from a Foster Home
to Another Placement When a Relative Came Forward Late in a Case:
[See PDF for image]
Notes: The survey question asked: to what extent did your state face
the following challenges, situations, or events for ICWA and non-ICWA
children: relative came forward late in a case, prompting need to
decide between current foster placement and placement with a relative?
Twenty-three states responded "data not available" or "do not know" for
ICWA children, while 18 states responded "data not available" for non-
ICWA children.
[End of figure]
Our survey showed that fewer of these same 19 states were likely to
face decisions about whether to change a child's pre-adoptive home to
place the child with a relative and that these decisions occurred about
as often for children subject to ICWA as for other children not subject
to the law. As shown in figure 5, six states reported often facing
decisions about whether to keep children subject to ICWA with their
current pre-adoptive family, while seven states reported often facing
these decisions for other children.
Figure 5: Survey Results from 19 Child Welfare Agencies Reporting on
How Often They Face Decisions to Move a Child from a Pre-adoptive
Placement to Another Placement When a Relative Came Forward Late in a
Case:
[See PDF for image]
Notes: The survey question asked: to what extent did your state face
the following challenges, situations, or events for ICWA and non-ICWA
children: relative came forward late in a case, prompting need to
decide between current adoptive placement and placement with a relative?
Twenty-three states responded "data not available" or "do not know" for
ICWA children, while 18 states responded "data not available" for non-
ICWA children.
[End of figure]
Child welfare officials said that when facing decisions to change a
child's placement, they would generally move a child to a home that was
more in accordance with ICWA's preferences, unless this would create
emotional problems for the child. For example, an assistant district
attorney in Oklahoma said that she had a case in which the child had
serious emotional issues as a result of witnessing a sibling's homicide
at the hands of her mother. The attorney recommended against moving the
child to a relative's home after 2 years of doing well living with a
non-American Indian family. However, a few tribal officials said that
they sometimes had difficulties getting state child welfare and court
officials to move a child from an initial placement with a non-American
Indian family, regardless of the circumstances. An Oklahoma tribe, for
example, said a judge refused to move a child to an American Indian
home after 3 days in a non-American Indian foster home because the
child had already bonded with the foster family.
Relationships with Tribes Can Affect Placement Decisions and How They
Align with ASFA Provisions:
How well states and tribes work together can also affect placement
decisions, particularly in agreeing on the appropriate permanency plan
for a child. For example, while ASFA encourages states to move children
into permanent homes quickly and emphasizes adoption for children who
cannot return to their families, many tribes do not believe in
terminating parental rights and do not support adoption. When tribes
are not satisfied with placement decisions being made by the state,
they can seek tribal jurisdiction of a case, which gives the tribe
authority to make placement decisions for a child. However, officials
in the five states we visited reported that tribes do not frequently
seek jurisdiction of children subject to ICWA. Differences in opinion
between tribes and private adoption agencies about how ICWA's placement
preferences apply to children who are voluntarily relinquished for
adoption can also affect placement decisions.
Tribal and State Relationships:
The level of cooperation between tribes and states can affect placement
decisions, particularly in agreeing on the appropriate permanency plan
for a child. Tribal and state officials we interviewed described
varying levels of communication and cooperation between tribes and
child welfare agencies. In Oregon, for example, tribal, state, and
local officials consistently reported that they worked closely together
to make key placement decisions for children subject to ICWA. Social
workers at the two local offices we visited emphasized that they
consult with tribal staff about children subject to ICWA, work closely
with them throughout a case, and give deference to the tribe's wishes
about where the child should be placed and what the child's permanency
goal should be. Because they work so closely with the tribes, some
tribal and child welfare officials explained that they are generally
successful in placing children subject to ICWA with relatives or
American Indian families.
Several tribal officials told us that they worked well with caseworkers
in offices near the tribe, but not as well with social workers
elsewhere. In Cherokee County in Oklahoma, for example, which includes
the headquarters of the Cherokee Nation, state court and child welfare
officials reported that they generally worked well with tribal
officials and agreed on placements for children in foster care.
Officials with the Cherokee child welfare program agreed that they had
a good relationship with the local county child welfare staff, but
stated that social workers in other counties and other states did not
always work collaboratively with the tribe. Several other tribal
officials added that some caseworkers will not involve the tribe in
placement decisions and do not listen to the tribe's recommendations.
Tribal officials said that when tribes and states work well together,
children subject to ICWA are more likely to be placed with relatives or
American Indian families.
Tribal Cultural Beliefs and ASFA:
Tribal cultural beliefs can also influence decisions about a child's
permanent placement. These cultural beliefs sometimes conflict with
ASFA's 15 of 22 provision, which requires states to file a petition to
terminate parental rights for a child who has been in foster care for
15 of the last 22 months. Officials from many tribes told us that their
tribes do not believe that the connection between a parent and child
can be severed and, therefore, they do not believe in the termination
of parental rights. They expressed concern that states interpret ASFA
to overemphasize adoption as a permanency goal when parents cannot
reunify with their children. According to one tribal official, if a
child is living with family members in a stable, long-term situation,
the tribe considers that a permanent placement. Other tribal officials
said that they would agree to adoption under certain circumstances,
such as when relatives are adopting the child or if a parent has had no
contact with a child in 2 years.
Many of the tribal officials we spoke with also expressed concern that
ASFA does not provide sufficient time for parents to reunify with their
children. Some pointed out that ASFA's 15-month time frame for filing a
petition to terminate parental rights does not provide sufficient time
for American Indian parents to address difficult issues such as
substance abuse. A previous GAO study reported on some of the
difficulties state child welfare officials faced when applying ASFA's
15 of 22 provision to any family dealing with substance abuse
issues.[Footnote 4]
While a state can determine that tribal cultural beliefs is a
compelling reason to exempt children subject to ICWA from ASFA's 15 of
22 provision, our survey results, as well as previous work, indicate
that children not subject to ICWA can also be exempted when adoption is
not an appropriate plan. In our survey, for example, results from the
15 states that could answer a relevant question show little difference
in how frequently they exempt children subject to ICWA from the 15 of
22 provision compared to children not subject to ICWA (see fig. 6).
Similarly, in two previous GAO reports, data from a limited number of
states indicated that many of these states exempted numerous children
from ASFA's requirement to file a petition to terminate parental rights
after a child has been in foster care for 15 of the most recent 22
months.[Footnote 5] According to two Oregon court officials we
interviewed, all children who are unlikely to be adopted, such as those
who have severe behavioral or mental health issues, are also exempted
from this provision. One of these officials also said that both
children subject to ICWA and those not subject to ICWA may be exempt
when a child has been placed with grandparents who do not want to be
part of terminating the parental rights of their own children.
Figure 6: Survey Results from 15 State Child Welfare Agencies Reporting
on How Often They Exempt Children from ASFA's 15 of 22 Provision, FY
2003:
[See PDF for image]
Notes: The survey question was as follows: In fiscal year 2003, how
often did the following situations or events occur with ICWA and non-
ICWA children: state decided to exempt child who had been in foster
care for 15 of the most recent 22 months from ASFA's requirement to
file a petition to terminate parental rights?
Twenty-six states responded "data not available" or "do not know" for
ICWA children, while 22 states responded "data not available" or "do
not know" for non-ICWA children.
[End of figure]
Tribal and State Jurisdiction Decisions:
While several tribal officials told us that they will seek jurisdiction
of a case and the associated authority to make placement decisions for
a child if a tribe is not satisfied with the placement decisions being
made by the state, officials from five states we visited told us they
receive relatively few transfer requests for children subject to ICWA.
Officials from many tribes we interviewed concurred that they do not
request jurisdiction in many cases and discussed some factors they
consider when deciding whether to transfer ICWA cases to tribal court.
Tribal officials explained that they lack the resources to effectively
provide for the needs of all children subject to ICWA and that states
can generally offer more services for children than the tribes.
However, officials from some tribes also said they will not request
jurisdiction if the parent lives far from the reservation because the
tribe will not be able to provide services or monitor the family.
Officials from some tribes also told us that they allow children to
remain in state custody with the state providing services if the state
is working cooperatively with the tribe and if the tribe is satisfied
with the decisions the state is making, but will seek a transfer if
they have any concerns.
When tribes do request a transfer of jurisdiction to tribal court,
state, court, and tribal officials in four of the states we visited did
not report any significant problems with tribal requests to transfer
jurisdiction. However, child welfare and tribal officials in South
Dakota described tensions relating to transfer requests. State, local,
and court officials in the state expressed concerns that some tribal
requests to transfer jurisdiction occur late in the case and often
after the state has moved to terminate parental rights. Judges we
interviewed in South Dakota said they would generally deny these
requests as untimely. Officials from two South Dakota tribes we visited
acknowledged that sometimes a parent who does not want to cooperate
with the state will seek to transfer a case to the tribal court; one
tribal official also noted that sometimes state courts do not provide a
good reason for denying tribal transfer requests. During our tribal
panels, tribal officials from other states also reported resistance at
times from states with regard to transferring cases to tribal courts.
Placement Decisions for Children Voluntarily Relinquished for Adoption:
While ICWA's placement preferences also apply to children who are
voluntarily relinquished by their parents for adoption, tribal and
private adoption agency officials we spoke to reported varying
practices in implementing the preferences for these children. We
discussed voluntary adoptions with tribal officials and representatives
from private adoption agencies in the five states we visited and they
reported different perspectives about how ICWA placement preferences
should be applied in these circumstances and whether tribal or parental
preferences should prevail if the two are in conflict. Officials with
some tribes indicated that when they are informed about a voluntary
adoption case involving a child who is a member or potential member of
their tribe, they generally do not become involved in the private
adoption proceedings. Officials in other tribes reported that they will
intervene in these types of cases and oppose adoption placements that
do not follow ICWA's placement preferences. Several tribal officials
expressed concern that the tribe loses many potential tribal members
through voluntary adoptions.
Most of the private adoption officials we spoke with reported that
tribes frequently accept a birth parent's choice of a non-American
Indian adoptive family. In some cases, however, they said a tribe will
insist that a child subject to ICWA be placed with relatives or with a
family from the tribe. Several private adoption officials reported that
many birth parents do not want to place their child with a tribal
family or relatives on the reservation; if a tribe opposes the parent's
choice of adoptive family, the birth parent frequently chooses to
parent the child. In the opinion of some of these officials, a parent's
wishes should constitute good cause for not following ICWA's placement
preferences. However, officials from two Oklahoma tribes told us that
private agencies do not have many American Indian adoptive families
because many American Indian families cannot afford the sizeable
adoption fees they charge; as a result, American Indian mothers are
generally not given an opportunity to choose an American Indian
adoptive family when they seek to voluntarily relinquish a child
through a private agency.
Limited Data Show No Consistent Differences in Length of Stay or Other
Foster Care Experiences for Children Subject to ICWA and Other
Children:
Limited data from four states showed that children subject to ICWA in
some of these states had similar foster care experiences as children
not subject to ICWA, while in other states, they had different
experiences. In two of four states that could identify children subject
to ICWA in their information systems, these children stayed in foster
care for lengths of time similar to those of Caucasian children. In
Washington, however, children subject to ICWA were less likely to leave
foster care within 2 years compared to Caucasian and other minority
children, while in Oregon children subject to ICWA and other minority
children were somewhat more likely to do so compared to Caucasian
children. In addition, differences in the number of placements and the
exit destinations of children subject to ICWA compared to other
children were evident. Many states reported in our survey that they did
not have the information necessary to comment on children's experiences
in foster care, but only 3 of the 10 states responding to a relevant
question reported that following ICWA's requirements lengthened a
child's stay in foster care by 5 months or more. Data were not
available from these states to determine whether these longer time
periods resulted in children experiencing a higher number of foster
care placements or differences in how children left the foster care
system--whether through adoption, transfer to another agency, or by
other means.
Data from the four states--which may not reflect the experiences of
other states--have some limitations.[Footnote 6] For example, while the
percentage of missing data was small for most of these states, Oregon
was unable to determine the race, ethnicity, or ICWA status of about 15
percent of children exiting foster care in fiscal year 2003. In
addition, the data from Oklahoma, Oregon, and South Dakota include some
children in tribal custody, while children in tribal custody are not
included in the data from Washington (see apps. I and II for more
information about the data provided by these states). In addition, our
analyses are based on children exiting foster care, which can influence
the measurement of foster care outcomes.[Footnote 7] We have only
reported differences between groups that are statistically
significant.[Footnote 8]
Data from the Four States and Survey Results Show Different Patterns in
the Length of Time Children Subject to ICWA Stay in Foster Care:
While no national data exist, data from four states showed different
patterns in the length of time children subject to ICWA spent in foster
care compared to other children in fiscal year 2003. As shown in figure
7, children exiting foster care who were subject to ICWA in two states
(Oklahoma and South Dakota) stayed in foster care for about the same
period of time as Caucasian and other minority children. In Washington,
however, children subject to ICWA who exited care were more likely to
have longer foster care stays in comparison; in Oregon, they had
shorter stays compared to Caucasian children, but similar stays
compared to other minority children.[Footnote 9] Differences in lengths
of stay can also be observed among states. For example, in South
Dakota, 81 percent of children subject to ICWA who exited care spent 2
years or less in foster care compared to 63 percent of children subject
to ICWA in Washington.
Figure 7: Length of Stay for Children Exiting Foster Care in Four
States, FY 2003:
[See PDF for image]
Notes: The number of children subject to ICWA exiting care in fiscal
year 2003 was 214 in Oregon, 1,534 in Oklahoma, 592 in South Dakota,
and 169 in Washington.
Minority children can include American Indian children who are not
subject to ICWA.
Three of the states were not able to identify the race or ethnicity for
all children exiting foster care and these children were not included
in our analysis. The percentage of children with unknown ethnicity who
exited foster care in 2003 was small in two of the states (0.2 percent
in South Dakota and 1.7 percent in Washington), but was higher in
Oregon (14.7 percent).
The data from Washington do not include any children who are in the
custody of a tribal court. In Oregon, Oklahoma, and South Dakota,
children who are in the custody of a tribal court and whose tribe has a
Title IV-E agreement with the state are included in the state's data.
In addition, the South Dakota data include some children who are in the
custody of a tribal court, but for whom the state provides services and
supervision.
Due to rounding, figures may not add to 100 percent.
[End of figure]
Most states were unable to respond to our survey questions about the
effect of following ICWA procedures on the amount of time children stay
in foster care. However, of the 16 state child welfare agencies that
answered this survey question, 4 states reported that hardly any
children experienced longer stays in foster care as a result of
following ICWA procedures, while 7 reported that only some children
remained longer in foster care. The remaining 5 states reported that
half or more of the children were affected by the law's requirements
(see fig. 8).
Figure 8: Survey Results from 16 State Child Welfare Agencies Reporting
How Many Children Remain in Foster Care Longer as a Result of Following
ICWA Procedures, FY 2003:
[See PDF for image]
Notes: The survey question was as follows: Compared to children not
subject to ICWA, overall, for about how many children subject to ICWA
has following ICWA procedures increased the amount of time required to
be placed in a permanent home?
Twenty-six states responded "data not available" or "do not know."
[End of figure]
Of the 10 states in our survey that reported on the estimated increase
in the amount of time to place a child in a permanent home as a result
of following ICWA, most reported that the additional time was minimal.
As shown in figure 9, officials in seven states reported that, on
average, children experienced no more than 1 to 2 additional months in
foster care. Only three states said that following ICWA requirements
delayed a child's permanent placement 5 months or more.
Figure 9: Survey Results from 10 State Child Welfare Agencies Reporting
on the Estimated Increased Time That Following ICWA Procedures Adds to
a Child's Time in Foster Care, FY 2003:
[See PDF for image]
Notes: The survey question was as follows: On average, how much
additional time does following ICWA procedures collectively add to the
time it takes to place a child subject to ICWA in a permanent
placement, compared to children not subject to ICWA?
Thirty-two states responded "data not available" or "do not know."
[End of figure]
When asked about the effect of individual ICWA requirements, officials
in most of the 22 responding states reported that following each of
five ICWA requirements did not increase, or only somewhat increased,
the time needed to place a child in a permanent home, as shown in
figure 10. No more than eight states reported that following a specific
ICWA procedure was responsible for a moderate or larger increase in the
time children spend in foster care. While responses were fairly similar
for the five ICWA requirements, more states reported that finding
foster and adoptive homes in accordance with ICWA's placement
preferences influenced a child's time in foster care.
Figure 10: Survey Results from 22 State Child Welfare Agencies
Reporting on the Effect of Specific ICWA Procedures on the Time to
Place a Child in a Permanent Home Compared to Other Children in Foster
Care, FY 2003:
[See PDF for image]
Notes: The survey question was as follows: On average, how much have
each of these required ICWA procedures increased, if at all, the total
amount of time it takes to place ICWA children in a permanent placement
compared to non-ICWA children?
Nineteen states responded "data not available" or "do not know" about
the effect of locating foster homes that are in accordance with ICWA
placement preferences, while 21 states responded "data not available"
or "do not know" to the remaining questions regarding identifying
children who are subject to ICWA, notifying tribes, locating adoptive
homes, and meeting ICWA evidence standards.
For the "at most somewhat increased" category, the following response
categories were grouped together: hardly or not at all increased and
somewhat increased.
For the "at least moderately increased" category, the following
response categories were grouped together: moderately increased,
greatly increased, and very greatly increased.
[End of figure]
One reason that some states may report few differences in length of
stay for children subject to ICWA and other children is that officials
in state child welfare agencies and courts may use similar standards
that apply to all children, despite differences outlined in the law.
* Active Efforts: ICWA requires states to provide "active efforts" to
prevent the break up of an American Indian family, while states are
only required to provide "reasonable efforts" for other children to
receive federal funds. According to some state officials, as part of
providing active efforts, caseworkers may offer extra assistance, such
as transportation assistance or culturally-relevant services to
American Indian families, and may spend more time trying to reunify the
family, which can, in some cases, lead to a child remaining in foster
care for a longer period of time. However, other state officials told
us that the level of services offered to the general child welfare
population has been increasing, blurring the line between active
efforts and the "reasonable efforts" states are required to provide to
all families whose children are taken into state custody. Officials in
four states attributed this similarity to the influence of ASFA, noting
that ASFA's time frames require states to provide more services upfront
in order to decide after 15 months whether to reunify a family or
terminate parental rights. Some tribal officials disagreed and told us
that social workers do not always provide active efforts to children
subject to ICWA. In some cases, they said, state caseworkers simply
refer parents to services without providing any additional assistance-
-essentially providing the same level of services as they would for a
non-American Indian family.
* Evidence Standard for Terminating Parental Rights: Some child welfare
officials we interviewed in one state believe that ICWA's higher
evidence standard for terminating parental rights can make it more
difficult to terminate parental rights and prolong a child's stay in
foster care in some cases. Other child welfare officials, however, do
not consider ICWA's evidence standard to be a significant factor in
placement decisions, because they believe that judges and juries use a
similar evidence standard for all children. Our survey results also
suggest that petitions to terminate parental rights are not often
rejected for children subject to ICWA due to the higher evidence
standard. As shown in figure 11, most of the 19 states responding to a
relevant question reported that petitions on behalf of children subject
to ICWA are seldom, if ever, rejected by the courts due to insufficient
evidence. In fact, these states reported that courts rejected these
petitions due to insufficient evidence more often on behalf of children
not subject to ICWA.
Figure 11: Survey Results from 19 State Child Welfare Agencies
Reporting on How Often Courts Reject State Requests to Terminate
Parental Rights for Children in Foster Care Because Evidence Does Not
Meet Applicable Legal Standards, FY 2003:
[See PDF for image]
Notes: The survey question was as follows: In fiscal year 2003, how
often did the following situations or events occur with ICWA and non-
ICWA children: court rejected the state's request to terminate parental
rights because the state's case did not meet the appropriate legal
sufficiency standard for evidence?
Twenty-four states responded "data not available" or "do not know" for
ICWA children, while 19 states responded "data not available" or "do
not know" for non-ICWA children.
[End of figure]
Data from Four States Show Some Differences in How Children Subject to
ICWA Move through Foster Care:
While only three of the four states provided placement information,
data from two of these states showed no differences in the number of
placements experienced by children subject to ICWA and other children
who exited foster care.[Footnote 10] In Washington, however, children
exiting care who were subject to ICWA were more likely to have a
greater number of placements than Caucasian or other minority children,
as shown in figure 12. Additional statistical analyses of the state
placement data showed children subject to ICWA in Washington were less
likely than other children to have one or two placements and more
likely to have four or more placements than Caucasian children. The
analyses also showed that Oregon children subject to ICWA were less
likely than Caucasian children to have four or more
placements.[Footnote 11] These data also indicate differences among
states in the number of placements. For example, South Dakota reported
that 26 percent of children exiting foster care who were subject to
ICWA had three or more placements while in foster care compared to 37
percent in Washington.
Figure 12: Number of Placements for Children Exiting Foster Care in
Three States, FY 2003:
[See PDF for image]
Notes: The number of children subject to ICWA exiting care in fiscal
year 2003 was 214 in Oregon, 592 in South Dakota, and 169 in
Washington.
Minority children can include American Indian children who are not
subject to ICWA.
Washington could not identify the number of placements for two
Caucasian children (less than 1 percent) and six minority children
(less than 1 percent).
Three of the states were not able to identify the race or ethnicity for
all children exiting foster care and these children were not included
in our analysis. The percentage of children with unknown ethnicity who
exited foster care in 2003 was small in two of the states (0.2 percent
in South Dakota and 1.7 percent in Washington), but was higher in
Oregon (14.7 percent).
The data from Washington do not include any children who are in the
custody of a tribal court. In Oregon and South Dakota, children who are
in the custody of a tribal court and whose tribe has a Title IV-E
agreement with the state are included in the state's data. In addition,
the South Dakota data include some children who are in the custody of a
tribal court, but for whom the state provides services and supervision.
[End of figure]
Data from the four states showed some differences in how children
subject to ICWA left foster care compared to other children. When
comparing whether they left the foster care system to reunify with
their families, left under another type of permanent arrangement (such
as adoption or guardianship), or left under different circumstances,
most children in these states who left the foster care system in 2003
were reunified with their families. However, some significant
differences can be observed. In Washington, for example, reunification
rates for children subject to ICWA were significantly lower compared to
Caucasian or other minority children. In Oklahoma, children subject to
ICWA and Caucasian children were less likely to be reunified than other
minority children. Differences were also found based on the state where
children lived. For example, the reunification rate for children
subject to ICWA was 58 percent in Oklahoma, but only 36 percent in
Washington.
Figure 13: Percentage of Children Exiting Foster Care in FY 2003 by
Reunification in Four States:
[See PDF for image]
Notes: The number of children subject to ICWA exiting care in fiscal
year 2003 was 214 in Oregon, 1,534 in Oklahoma, 592 in South Dakota,
and 169 in Washington.
Minority children can include American Indian children who are not
subject to ICWA.
Three of the states were not able to identify the race or ethnicity for
all children exiting foster care and these children were not included
in our analysis. The percentage of children with unknown ethnicity who
exited foster care in 2003 was small in two of the states (0.2 percent
in South Dakota and 1.7 percent in Washington), but was higher in
Oregon (14.7 percent).
The data from Washington do not include any children who are in the
custody of a tribal court. In Oregon, Oklahoma, and South Dakota,
children who are in the custody of a tribal court and whose tribe has a
Title IV-E agreement with the state are included in the state's data.
In addition, the South Dakota data include some children who are in the
custody of a tribal court, but for whom the state provides services and
supervision.
[End of figure]
Children subject to ICWA were somewhat less likely than Caucasian
children, and about as likely as other minority children, to leave
foster care through adoption in the four states, as shown in figure 14.
Adoption rates for children subject to ICWA were fairly comparable
among the states, ranging from 12 percent to 17 percent.
Figure 14: Children Exiting Foster Care through Adoption, FY 2003 in
Four States:
[See PDF for image]
Notes: The number of children subject to ICWA exiting care in fiscal
year 2003 was 214 in Oregon, 1,534 in Oklahoma, 592 in South Dakota,
and 169 in Washington.
Minority children can include American Indian children who are not
subject to ICWA.
Three of the states were not able to identify the race or ethnicity for
all children exiting foster care and these children were not included
in our analysis. The percentage of children with unknown ethnicity who
exited foster care in 2003 was small in two of the states (0.2 percent
in South Dakota and 1.7 percent in Washington), but was higher in
Oregon (14.7 percent).
The data from Washington do not include any children who are in the
custody of a tribal court. In Oregon, Oklahoma, and South Dakota
children who are in the custody of a tribal court and whose tribe has a
Title IV-E agreement with the state are included in the state's data.
In addition, the South Dakota data include some children who are in the
custody of a tribal court, but for whom the state provides services and
supervision.
[End of figure]
Children subject to ICWA were somewhat more likely to exit foster care
through a guardianship arrangement than either Caucasian or minority
children, as shown in figure 15. Guardianship rates for children
subject to ICWA were fairly similar in three states, ranging from 7
percent to 9 percent, but were higher in Washington.
Figure 15: Percentage of Children Exiting Foster Care in FY 2003 by
Guardianship in Four States:
[See PDF for image]
Notes: The number of children subject to ICWA exiting care in fiscal
year 2003 was 214 in Oregon, 1,534 in Oklahoma, 592 in South Dakota,
and 169 in Washington.
Minority children can include American Indian children who are not
subject to ICWA.
Three of the states were not able to identify the race or ethnicity for
all children exiting foster care and these children were not included
in our analysis. The percentage of children with unknown ethnicity who
exited foster care in 2003 was small in two of the states (0.2 percent
in South Dakota and 1.7 percent in Washington), but was higher in
Oregon (14.7 percent).
The data from Washington do not include any children who are in the
custody of a tribal court. In Oregon, Oklahoma, and South Dakota,
children who are in the custody of a tribal court and whose tribe has a
Title IV-E agreement with the state are included in the state's data.
In addition, the South Dakota data include some children who are in the
custody of a tribal court, but for whom the state provides services and
supervision.
[End of figure]
While most children who exit foster care are placed in permanent homes,
many leave foster care under different circumstances--for example, when
they turn 18, run away, or are transferred to another agency. Children
subject to ICWA in three states were significantly more likely than
Caucasian children to be transferred to another agency. According to a
child welfare official in South Dakota, the state does not have
information to determine what type of agency these children were
transferred to, but said that other agencies could include tribal
courts, juvenile justice facilities, and agencies for the
developmentally disabled. Officials in Oklahoma and Washington reported
that most children subject to ICWA in this category are transferred to
tribal court.
While transfer rates for children subject to ICWA were generally 11
percent or less, in Washington, transfer rates were nearly three times
as high, and this was the second most common way for children subject
to ICWA to leave foster care. Washington officials explained that the
state seeks to identify a child's tribal affiliation and transfer a
child to tribal jurisdiction whenever appropriate. They noted a
relationship between the higher transfer rate and the lower
reunification rate for children subject to ICWA in their state,
pointing out that if the percentage of children reunified and the
percentage transferred are combined, the total percentage is similar
for all groups of children. We reviewed exit data using an alternative
methodology that excluded transfers and found that differences among
children subject to ICWA, Caucasian children, and other minority
children were somewhat less. However, children subject to ICWA were
still somewhat less likely to leave foster care through adoption and
somewhat more likely to leave under a guardianship arrangement than
other children.
ACF Obtains Limited Information on ICWA Implementation through Its
Oversight of States' Child Welfare Systems:
While ICWA did not give ACF direct oversight responsibility for states'
implementation of ICWA, the agency reviews limited information as part
of its general oversight of states' child welfare systems; however, the
monitoring processes in place sometimes provide little information that
ACF can use to assess states' efforts to implement the law's
requirements. States are required to discuss ICWA implementation in
their overall 5-year child and family services plan and in their annual
progress and services reports, but states are not required to use a
standard reporting format and some states provide little meaningful
information with respect to ICWA implementation. ACF's reviews of
states' overall child welfare systems through its CFSR process have
greater potential to identify state implementation issues, but the
structure of this oversight process does not ensure that ICWA issues
will be addressed in the various aspects of the review itself or that
identified problems will be addressed and monitored in states' program
improvement plans or through other means.
ACF Has Limited Oversight Authority and Some States Report Little
Information on ICWA Implementation:
ICWA did not give any federal agency explicit oversight
responsibilities with respect to states' implementation of the law nor
did it require states to report on their implementation efforts.
Recognizing the lack of reporting requirements, the Congress amended
Title IV-B to require state child welfare agencies to report to ACF on
their efforts to comply with ICWA in their 5-year plans and to develop
these plans in consultation with tribal organizations in the state.
This reporting requirement provides ACF with some limited oversight
authority, since it monitors states' compliance with Title IV-B
requirements. ACF officials emphasized that the agency does not
administer ICWA and is not authorized to take any enforcement actions
for failure to comply with the act, although they encourage states to
comply with ICWA. ACF guidance issued for developing the 5-year plans
covering fiscal years 2000 through 2004 required states to provide a
description of the specific measures to be taken to comply with ICWA,
which, at a minimum, must provide for (1) the identification of
American Indian children, (2) the notification of tribes, and (3)
giving preference to American Indian caregivers when determining out-
of-home or permanent placements for American Indian children.
Additional guidance issued in 2000 (1) required states to discuss ICWA
implementation in their annual progress and services reports, which
discuss progress made in implementing the 5-year plans; (2) emphasized
the need for states to consult with tribal organizations; and (3)
recommended that states with no federally recognized tribes consult
with urban or national American Indian organizations in the development
of their plans.
In its guidance for states' 2003 annual progress and services reports,
ACF noted that states appeared to be having difficulties reporting on
ICWA adherence and reiterated that states needed to provide a
description of the specific measures taken to comply with the law.
However, as of December 2004, ACF had not established standard
guidelines or tools for reviewing and evaluating the completeness of
state ICWA compliance activity in these reports. Reviews of state
reports have shown that they do not always include information that ACF
would need to monitor states' implementation of the law, because they
either do not include ICWA implementation information or do not
explicitly address progress made to implement the law. A study of the
1999 5-year plans and the 2000 annual progress and services reports by
researchers from Washington University in St. Louis found that three-
quarters of the states did not address all three of ACF's required
measures and over half of the states failed to address any of the
required measures.[Footnote 12] Our more recent review of 48 states'
annual progress and services reports submitted to ACF in 2004 showed
similar results in addressing all three areas (see table 7), although
only 4 states did not address ICWA at all. While all states have the
same reporting requirements, we noted that states having higher
concentrations of American Indians were somewhat more likely to address
all three ACF reporting requirements than other states.
Table 7: States Explicitly Addressing ICWA Compliance Requirements in
Their 2004 Annual Progress and Services Reports:
Tribal Population Density Category[A]: I;
All 3 required areas addressed: 3;
2 required areas addressed: 0;
1 required area addressed: 1;
Addressed ICWA compliance, but not any required areas explicitly: 8;
Did not address ICWA: 0;
Total: 12.
Tribal Population Density Category[A]: II;
All 3 required areas addressed: 3;
2 required areas addressed: 0;
1 required area addressed: 1;
Addressed ICWA compliance, but not any required areas explicitly: 6;
Did not address ICWA: 0;
Total: 10.
Tribal Population Density Category[A]: III;
All 3 required areas addressed: 1;
2 required areas addressed: 1;
1 required area addressed: 2;
Addressed ICWA compliance, but not any required areas explicitly: 6;
Did not address ICWA: 0;
Total: 10.
Tribal Population Density Category[A]: IV;
All 3 required areas addressed: 2;
2 required areas addressed: 4;
1 required area addressed: 4;
Addressed ICWA compliance, but not any required areas explicitly: 2;
Did not address ICWA: 4;
Total: 16.
Tribal Population Density Category[A]: Total;
All 3 required areas addressed: 9;
2 required areas addressed: 5;
1 required area addressed: 8;
Addressed ICWA compliance, but not any required areas explicitly: 22;
Did not address ICWA: 4;
Total: 48[B].
Source: GAO review of states' 2004 annual progress and services
reports.
[A] Category I represents states with the highest tribal population
densities and Category IV represents states with the lowest tribal
population densities. See appendix I for more information about the
creation of these categories and which states are included in each.
[B] Approved annual progress and services reports for three states were
not available at the time of our review.
[End of table]
Even when states do provide ICWA information on the three required
areas, our review revealed that the reports varied widely in scope and
content, making it sometimes difficult to determine what progress
states were making in implementing the law. For example, North Dakota's
report discussed numerous ICWA-related topics, including contacting
tribes to elicit suggestions for increasing relative or tribal
placements. However, the state did not provide information on the
extent to which it was successful in giving preference to American
Indian caregivers when placing American Indian children. In other
cases, reports are missing information on state actions taken to
implement ICWA. During our site visit to Oregon, for example, we noted
that the state had procedures to identify ICWA children, notify tribes,
and follow ICWA's placement preferences that were not reflected in the
state's 2004 annual progress and services report submitted to ACF.
ACF guidance issued in 2000 lists several suggested ICWA activities
that states may choose to address in their 5-year plans. Addressing
these activities is not required, but could provide a better picture of
efforts states are taking to improve how ICWA is being implemented.
These activities include training programs, development of caseworker
expectations, recruitment of American Indian foster homes, and
agreements to recognize and use tribal foster homes. While some states
included information on some of these suggested activities in their
annual progress and services reports, they often did not discuss the
relative success of their efforts, which limited the usefulness of this
information for oversight purposes. For example, while table 8 shows
that 31 states discussed their ICWA training efforts, our review showed
that only 2 states reported how many staff were trained.
Table 8: States Reporting the Use of Activities Suggested by ACF to
Comply with ICWA:
Suggested ICWA Activities in ACF Guidance: Training programs for state
employees;
Number of states: 31.
Suggested ICWA Activities in ACF Guidance: Forms/procedures that
include tribal affiliation and notification;
Number of states: 36.
Suggested ICWA Activities in ACF Guidance: Development of state
caseworker compliance expectations or measures;
Number of states: 1.
Suggested ICWA Activities in ACF Guidance: ICWA-related collaborations
with local agencies to provide services to American Indian children;
Number of states: 12.
Suggested ICWA Activities in ACF Guidance: State partnership agreements
with tribes;
Number of states: 23.
Suggested ICWA Activities in ACF Guidance: Culturally appropriate
standards for foster home licensing;
Number of states: 1.
Suggested ICWA Activities in ACF Guidance: Recruiting of American
Indian foster homes;
Number of states: 14.
Suggested ICWA Activities in ACF Guidance: Promotion of relative
placements for American Indian children;
Number of states: 5.
Suggested ICWA Activities in ACF Guidance: Recognition and use of
foster homes licensed by tribes;
Number of states: 4.
Suggested ICWA Activities in ACF Guidance: Other[A];
Number of states: 32.
Source: GAO review of states' 2004 annual progress and services
reports.
[A] Other activities states reported include hiring ICWA specialists
and holding ICWA conferences.
[End of table]
As shown in table 9, on average, states with higher American Indian
population densities discussed more ICWA activities in their annual
progress and services reports than states with lower population
densities.
Table 9: Relationship between ICWA Topics Discussed in States' 2004
Annual Progress and Services Reports and Density of States' American
Indian Population:
American Indian population density category[A]: I;
Average number of ICWA measures discussed in APSR: 4.0.
American Indian population density category[A]: II;
Average number of ICWA measures discussed in APSR: 4.1.
American Indian population density category[A]: III;
Average number of ICWA measures discussed in APSR: 3.5.
American Indian population density category[A]: IV;
Average number of ICWA measures discussed in APSR: 2.2.
Source: GAO review of 2004 annual progress and services reports.
[A] The states included in each category are listed in appendix I.
Category I includes states with the highest densities of American
Indians in their populations, while category IV includes states with
the lowest densities.
[End of table]
The range of ICWA information included in the annual progress and
services reports may also be related to how closely ACF regional staff
review states' activities for information related to ICWA
implementation. ACF's regional offices are responsible for reviewing
the ICWA information that states report in their 5-year plans and in
their annual progress and services reports to ensure that states have
followed ACF guidance, including whether they contain information on
how tribes or tribal organizations were consulted in the development of
these documents. If information initially submitted by states about
their consultation with tribes or efforts to comply with ICWA is
lacking or unclear, regional officials said they generally require
states to provide additional clarification concerning their ICWA
activities prior to approving the state's 5-year plan or annual
progress reports. Four regions had a staff member designated as the
tribal liaison for the region (two others designated a tribal liaison
during the course of our review). ACF staff in some regions reported
conducting some additional oversight activities with regard to ICWA or
tribal issues. In one ACF region with 69 tribes, the tribal child
welfare specialist told us that she checked the policy and procedures
manuals for each state to ensure that they included guidance on
following ICWA. In another region with some tribes but relatively few
children subject to ICWA, the tribal program specialist has sponsored
several ICWA training sessions for state child welfare and judicial
staff, in part because of continued resistance to ICWA on the part of
some state child welfare and judicial staff. In other regions, ACF
staff reported relying on reviews of states' plans and annual progress
reports, with no additional monitoring activities.
ACF's Child and Family Services Reviews Do Not Focus on ICWA and Do Not
Ensure That States Address ICWA Problems:
The structure of ACF's CFSR reviews of states' overall child welfare
systems does not ensure that ICWA issues will be addressed in the
various aspects of the review itself or that identified problems will
be addressed and monitored in states' program improvement plans.
Information about states' ICWA efforts may be obtained in three
different parts of the review process:
* In the CFSR statewide assessment process: A state must discuss how
effective it has been in implementing ICWA.
* In interviews with stakeholders by the CFSR review team: These
interviews may discuss how the child welfare agency complies with ICWA
provisions concerning notification of tribes, observing placement
preferences, and working with tribes and courts concerning decisions
for American Indian children in foster care.
* As part of the onsite review of child welfare case files: The review
determines if the case involves an American Indian child and if so,
will then determine if (1) the state notified the tribe of the child's
placement in a timely manner and (2) the child was placed with extended
family or with an American Indian family. Our review of the self-
assessments submitted by 51 states showed that all but 2 states
addressed their efforts to implement ICWA, but the submitted
information was somewhat limited to assess states' performance. One
state, for example, noted that it had American Indian children in state
custody, but did not discuss any ICWA compliance measures. In general,
states with higher concentrations of American Indians were more likely
to discuss a greater number of ICWA implementation efforts in their
statewide assessments.
Our review of CFSR final reports disclosed that 32 of 51 state reports
raised some concerns about ICWA implementation, as shown in table 10.
CFSR reports for 10 states--generally those with low densities of
American Indians--had no discussion of ICWA implementation. Concerns
raised in the reports included inadequate training of state social
workers, shortages of American Indian homes for foster and adoptive
placements, and identification and notification issues. For example,
the Alaska CFSR final report notes that stakeholders commented on the
lack of sufficient tribal involvement in ICWA training, despite a 5-
year emphasis on this training. The Arizona report noted that
compliance with ICWA is not always consistent with the intent or spirit
of the law from district to district, and that efforts are not made to
determine the applicability of ICWA in all cases. Similarly, in the
Nevada report, some stakeholders expressed concern that some judges in
the state do not follow the provisions of ICWA. In Utah, reviewers
noted that stakeholders expressed different opinions about the
consistency with which caseworkers identified American Indian children
and notified tribes when these children are in state custody. Montana's
report stated that stakeholders noted that the child welfare agency is
in need of American Indian foster homes, but does not do any specific
recruiting for these homes.
Table 10: ICWA Concerns Raised in CFSR Final Reports and Program
Improvement Plans by State:
Tribal population density category: I;
State: Alaska;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? Yes.
Tribal population density category: I;
State: Arizona;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? No.
Tribal population density category: I;
State: Idaho;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? Yes.
Tribal population density category: I;
State: Minnesota;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? No.
Tribal population density category: I;
State: Montana;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? No.
Tribal population density category: I;
State: New Mexico;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? No;
ICWA concerns in CFSR addressed in PIP? NA.
Tribal population density category: I;
State: North Dakota;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? No.
Tribal population density category: I;
State: Oklahoma;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? Yes.
Tribal population density category: I;
State: Oregon;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? No;
ICWA concerns in CFSR addressed in PIP? NA.
Tribal population density category: I;
State: South Dakota;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? Yes.
Tribal population density category: I;
State: Washington;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? Yes.
Tribal population density category: I;
State: Wyoming;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? Yes.
Tribal population density category: II;
State: California;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? No;
ICWA concerns in CFSR addressed in PIP? NA.
Tribal population density category: II;
State: Colorado;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? No.
Tribal population density category: II;
State: Kansas;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? No;
ICWA concerns in CFSR addressed in PIP? NA.
Tribal population density category: II;
State: Maine;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? Yes.
Tribal population density category: II;
State: Michigan;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? No.
Tribal population density category: II;
State: Mississippi;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? Not received[B].
Tribal population density category: II;
State: Nebraska;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? Yes.
Tribal population density category: II;
State: Nevada;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? No.
Tribal population density category: II;
State: North Carolina;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? No;
ICWA concerns in CFSR addressed in PIP? NA.
Tribal population density category: II;
State: Rhode Island;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? Not received[B].
Tribal population density category: II;
State: Utah;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? Yes.
State: Wisconsin;
ICWA discussed in final CFSR report? Tribal population density
category: Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? Yes.
Tribal population density category: III;
State: Alabama;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? No;
ICWA concerns in CFSR addressed in PIP? NA.
Tribal population density category: III;
State: Connecticut;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? No;
ICWA concerns in CFSR addressed in PIP? NA.
Tribal population density category: III;
State: Florida;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? No.
Tribal population density category: III;
State: Iowa;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? Yes.
Tribal population density category: III;
State: Indiana;
ICWA discussed in final CFSR report? NA;
ICWA implementation concerns raised in final CFSR report? No;
ICWA concerns in CFSR addressed in PIP? NA.
Tribal population density category: III;
State: Louisiana;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? No.
Tribal population density category: III;
State: Massachusetts;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? No.
Tribal population density category: III;
State: New York;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? No.
Tribal population density category: III;
State: South Carolina;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes[C];
ICWA concerns in CFSR addressed in PIP? NA.
StateIV: Texas;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? No.
Tribal population density category: IV;
State: Arkansas;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? Yes.
Tribal population density category: IV;
State: Delaware;
ICWA discussed in final CFSR report? N[A];
ICWA implementation concerns raised in final CFSR report? No;
ICWA concerns in CFSR addressed in PIP? NA.
Tribal population density category: IV;
State: District of Columbia;
ICWA discussed in final CFSR report? No;
ICWA implementation concerns raised in final CFSR report? No;
ICWA concerns in CFSR addressed in PIP? NA.
Tribal population density category: IV;
State: Georgia;
ICWA discussed in final CFSR report? N[A];
ICWA implementation concerns raised in final CFSR report? No;
ICWA concerns in CFSR addressed in PIP? NA.
Tribal population density category: IV;
State: Hawaii;
ICWA discussed in final CFSR report? N[A];
ICWA implementation concerns raised in final CFSR report? No;
ICWA concerns in CFSR addressed in PIP? NA.
Tribal population density category: IV;
State: Illinois;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? Not received[B].
Tribal population density category: IV;
State: Kentucky;
ICWA discussed in final CFSR report? N[A];
ICWA implementation concerns raised in final CFSR report? No;
ICWA concerns in CFSR addressed in PIP? NA.
Tribal population density category: IV;
State: Maryland;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? Not received[B].
Tribal population density category: IV;
State: Missouri;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? Yes.
Tribal population density category: IV;
State: New Hampshire;
ICWA discussed in final CFSR report? No;
ICWA implementation concerns raised in final CFSR report? No;
ICWA concerns in CFSR addressed in PIP? NA.
Tribal population density category: IV;
State: New Jersey;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? No;
ICWA concerns in CFSR addressed in PIP? NA.
Tribal population density category: IV;
State: Ohio;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? Yes.
Tribal population density category: IV;
State: Pennsylvania;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? Yes;
ICWA concerns in CFSR addressed in PIP? Yes.
Tribal population density category: IV;
State: Tennessee;
ICWA discussed in final CFSR report? Yes;
ICWA implementation concerns raised in final CFSR report? No;
ICWA concerns in CFSR addressed in PIP? NA.
Tribal population density category: IV;
State: Vermont;
ICWA discussed in final CFSR report? N[A];
ICWA implementation concerns raised in final CFSR report? No;
ICWA concerns in CFSR addressed in PIP? NA.
Tribal population density category: IV;
State: Virginia;
ICWA discussed in final CFSR report? N[A];
ICWA implementation concerns raised in final CFSR report? No;
ICWA concerns in CFSR addressed in PIP? NA.
State State: West Virginia;
ICWA discussed in final CFSR report? N[A];
ICWA implementation concerns raised in final CFSR report? No;
ICWA concerns in CFSR addressed in PIP? NA.
Source: GAO review of Child and Family Services Review final reports
and available state program improvement plans.
[A] Only ICWA related statement was that the state has no federally
recognized tribes.
[B] ACF had not provided GAO with approved plan as of December 31,
2004.
[C] Report notes that concern was resolved.
[End of table]
The CFSR process is not designed to ensure that these types of ICWA
problems are addressed. ACF requires states to develop program
improvement plans to address problems identified during the CFSR
process, specifically, areas in which ACF determines that the state is
not in compliance with the CFSR standards. An issue can be discussed in
the CFSR report without ACF necessarily finding that the state was not
in compliance with these standards. The goal of the CFSR is for states
to address the most pressing problems that are contributing to poor
outcomes for children. ACF does not specifically review or rate ICWA
implementation as part of the CFSR process; instead, ICWA issues are
formally addressed as part of the CFSR measure relating to preserving
family relationships and community connections. If a state is able to
pass this overall measure based on performance on other aspects of the
measure, ACF would not generally require states to address ICWA
implementation issues in their program improvement plan. For example,
Michigan's CFSR final report noted that the state did not have enough
Native American foster homes and that the procedures used to identify
Native American children and notify tribes were insufficient. However,
because the "preserving connections" factor was assessed as a strength,
the state did not discuss any specific corrective actions concerning
identification of American Indian children, notification of tribes, or
recruitment of Native American foster homes.
While states may voluntarily address ICWA implementation issues in
their program improvement plans, our review of 47 approved plans
provided to us by ACF as of December 2004 showed that states did not
always identify corrective actions they would take to improve ICWA
compliance. As shown in table 10, 12 of the 32 states with ICWA
implementation concerns identified during the CFSR did not report plans
to address ICWA implementation problems in their program improvement
plans.
Similarly, the reviews of case files during the CFSR do not ensure that
ICWA implementation is reviewed because cases involving American Indian
children are not always included. During CFSR onsite visits, ACF
requires officials to visit three sites in a state and randomly select
a total of 50 case files for their review. During these case reviews,
if a child appears to have American Indian heritage, the CFSR reviewers
are then to determine if the tribe was notified and if the child was
placed with the tribe or extended family. Under this methodology,
states with fewer children subject to ICWA in the child welfare system
are less likely to have an ICWA case selected for review of their
compliance with the law. In some states, however, sites where tribes
were located were intentionally selected to increase the probability
that cases involving American Indian children would be selected for
review.
The limited information gathered from the case file reviews may not
accurately reflect a state's implementation of ICWA. In the CFSRs
conducted from 2002 to 2004,[Footnote 13] ACF's review of 72 cases
involving American Indian children in foster care showed that states
often did not implement one or more ICWA provisions, but whether these
children were actually subject to ICWA is unknown. As shown in table
11, CFSR reviewers concluded that the child's tribe was not notified in
over one-fourth of the cases reviewed and the child was not placed with
a relative or the tribe over one-half of the time. The reviewers made
these determinations for all American Indian cases reviewed, whether or
not the children were subject to ICWA. Most of the states that had
cases with identified ICWA issues did include efforts to improve ICWA
implementation in their improvement plans, including four of the states
with the highest concentrations of America Indians.
Table 11: Review of Tribal Notification and Placements in Cases
Involving American Indian Children during Child and Family Services
Reviews, 2002-2004:
Tribal population density category: I;
State: Alaska;
Number of cases reviewed involving American Indian children[A]: 16;
Cases where child's tribe was not notified: 2;
Cases where child was not placed with relative or tribe: 9;
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? Yes.
Tribal population density category: I;
State: Idaho;
Number of cases reviewed involving American Indian children[A]: 6;
Cases where child's tribe was not notified: 1;
Cases where child was not placed with relative or tribe: 1;
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? Yes.
Tribal population density category: I;
State: Montana;
Number of cases reviewed involving American Indian children[A]: 13;
Cases where child's tribe was not notified: 3;
Cases where child was not placed with relative or tribe: 5;
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? No.
Tribal population density category: I;
State: Oklahoma;
Number of cases reviewed involving American Indian children[A]: 3;
Cases where child's tribe was not notified: 0;
Cases where child was not placed with relative or tribe: 0;
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? Not applicable.
Tribal population density category: I;
State: Washington;
Number of cases reviewed involving American Indian children[A]: 5;
Cases where child's tribe was not notified: 1;
Cases where child was not placed with relative or tribe: 3;
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? Yes.
StateII: Wyoming;
Number of cases reviewed involving American Indian children[A]II: 4;
Cases where child's tribe was not notifiedII: 3;
Cases where child was not placed with relative or tribeII: 3;
[Empty];
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? Yes.
Tribal population density category: II;
State: California;
Number of cases reviewed involving American Indian children[A]: 1;
Cases where child's tribe was not notified: 0;
Cases where child was not placed with relative or tribe: 1;
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? Yes.
Tribal population density category: II;
State: Colorado;
Number of cases reviewed involving American Indian children[A]: 1;
Cases where child's tribe was not notified: 0;
Cases where child was not placed with relative or tribe: 0;
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? Not applicable.
Tribal population density category: II;
State: Michigan;
Number of cases reviewed involving American Indian children[A]: 1;
Cases where child's tribe was not notified: 0;
Cases where child was not placed with relative or tribe: 0;
Tribal population density category: [Empty];
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? Not applicable.
Tribal population density category: II;
State: Mississippi;
Number of cases reviewed involving American Indian children[A]: 2;
Cases where child's tribe was not notified: 2;
Cases where child was not placed with relative or tribe: 2;
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? PIP not received.
Tribal population density category: II;
State: Nebraska;
Number of cases reviewed involving American Indian children[A]: 2;
Cases where child's tribe was not notified: 1;
Cases where child was not placed with relative or tribe: 1;
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? Yes.
Tribal population density category: II;
State: Nevada;
Number of cases reviewed involving American Indian children[A]: 1;
Cases where child's tribe was not notified: 0;
Cases where child was not placed with relative or tribe: 1;
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? No.
Tribal population density category: II;
State: Rhode Island;
Number of cases reviewed involving American Indian children[A]: 1;
Cases where child's tribe was not notified: 1;
Cases where child was not placed with relative or tribe: 1;
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? PIP not received.
Tribal population density category: II;
State: Utah;
Number of cases reviewed involving American Indian children[A]: 4;
Cases where child's tribe was not notified: 0;
Cases where child was not placed with relative or tribe: 2;
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? Yes.
StateIII: Wisconsin;
Number of cases reviewed involving American Indian children[A]III: 3;
Cases where child's tribe was not notifiedIII: 2;
Cases where child was not placed with relative or tribeIII: 1;
Tribal population density categoryIII: [Empty];
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? Tribal population density categoryIII: Yes.
Tribal population density category: III;
State: Connecticut;
Number of cases reviewed involving American Indian children[A]: 1;
Cases where child's tribe was not notified: 0;
Cases where child was not placed with relative or tribe: 0;
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? Not applicable.
Tribal population density category: III;
State: Iowa;
Number of cases reviewed involving American Indian children[A]IV: 2;
Cases where child's tribe was not notifiedIV: 0;
Cases where child was not placed with relative or tribeIV: 1;
Tribal population density categoryIV: [Empty];
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? Tribal population density categoryIV: Yes.
Tribal population density category: IV;
State: Hawaii;
Number of cases reviewed involving American Indian children[A]: 1;
Cases where child's tribe was not notified: 1;
Cases where child was not placed with relative or tribe: 1;
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? No.
Tribal population density category: IV;
State: Maryland;
Number of cases reviewed involving American Indian children[A]: 1;
Cases where child's tribe was not notified: 1;
Cases where child was not placed with relative or tribe: 1;
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? PIP not received.
Tribal population density category: IV;
State: Missouri;
Number of cases reviewed involving American Indian children[A]: 2;
Cases where child's tribe was not notified: 1;
Cases where child was not placed with relative or tribe: 2;
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? Yes.
Tribal population density category: IV;
State: Ohio;
Number of cases reviewed involving American Indian children[A]: 2;
Cases where child's tribe was not notified: 1;
Cases where child was not placed with relative or tribe: 2;
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? Yes.
StateState: Total;
Number of cases reviewed involving American Indian children[A]Number of
cases reviewed involving American Indian children[A]: 72 (100%);
Cases where child's tribe was not notifiedCases where child's tribe was
not notified: 20 (27.8%);
Cases where child was not placed with relative or tribeCases where
child was not placed with relative or tribe: 37 (51.4%);
Tribal population density category37 (51.4%): [Empty];
If tribe not notified or child not placed with relative or tribe, ICWA
issues in PIP? Tribal population density categoryIf tribe not notified
or child not placed with relative or tribe, ICWA issues in PIP?
[Empty].
[End of table]
Source: GAO review of state program improvement plans and data provided
by James Bell Associates, which is under contract with ACF to compile
Child and Family Services Review results.
Notes: ACF does not have case specific data on tribal notification and
placement for cases involving American Indian children for CFSRs
completed in 2001.
These cases involve American Indian children who may or may not be
formally subject to ICWA.
[A] Includes children who are part American Indian.
The case review questions involving tribal notification and placement
are included as part of the CFSR's assessment of how well the state
preserves the child's connections with family members and the child's
community. Based on the responses to these and other questions, ACF
rates the area either as a strength, as needing improvement, or not
applicable. Of the 2,600 total case files ACF reviewed during the CFSRs
conducted from 2001 through 2004, 87 cases from 20 states involved
children who were American Indian as shown in table 12. The CFSR
reviewers judged 23 of the 87 cases as needing improvement with regard
to preserving a child's connections in half of these states. While most
of the states that had cases rated as needing improvement addressed
ICWA implementation issues in their program improvement plans, two
states having higher concentrations of American Indians did not report
any planned corrective action.
Table 12: American Indian CFSR Cases Where Item Related to Preserving a
Child's Connections Was Judged "Needing Improvement" During Child and
Family Services Reviews, 2001-2004:
Tribal population density category: I;
State: Alaska;
American Indian CFSR cases reviewed[A]: 14;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 4;
If case(s) needing improvement, ICWA implementation issues in PIP? Yes.
Tribal population density category: I;
State: Idaho;
American Indian CFSR cases reviewed[A]: 5;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 0.
Tribal population density category: I;
State: Minnesota;
American Indian CFSR cases reviewed[A]: 10;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 1;
If case(s) needing improvement, ICWA implementation issues in PIP? No.
Tribal population density category: I;
State: Montana;
American Indian CFSR cases reviewed[A]: 10;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 2;
If case(s) needing improvement, ICWA implementation issues in PIP? Yes.
Tribal population density category: I;
State: North Dakota;
American Indian CFSR cases reviewed[A]: 2;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 0;
If case(s) needing improvement, ICWA implementation issues in PIP?
-.
Tribal population density category: I;
State: New Mexico;
American Indian CFSR cases reviewed[A]: 4;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 0.
Tribal population density category: I;
State: Oregon;
American Indian CFSR cases reviewed[A]: 2;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 0.
Tribal population density category: I;
State: South Dakota;
American Indian CFSR cases reviewed[A]: 21;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 6;
If case(s) needing improvement, ICWA implementation issues in PIP? Yes.
Tribal population density category: I;
State: Washington;
American Indian CFSR cases reviewed[A]: 1;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 0.
State: Wyoming;
American Indian CFSR cases reviewed[A]: 2;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 1;
If case(s) needing improvement, ICWA implementation issues in PIP? Yes.
Tribal population density category: II;
State: Maine;
American Indian CFSR cases reviewed[A]: 1;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 0;
If case(s) needing improvement, ICWA implementation issues in PIP? -.
Tribal population density category: II;
State: Michigan;
American Indian CFSR cases reviewed[A]: 1;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 0.
Tribal population density category: II;
State: Nebraska;
American Indian CFSR cases reviewed[A]: 2;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 1;
If case(s) needing improvement, ICWA implementation issues in PIP? Yes.
Tribal population density category: II;
State: Utah;
American Indian CFSR cases reviewed[A]: 2;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 0.
State: Wisconsin;
American Indian CFSR cases reviewed[A]: 3;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 3;
If case(s) needing improvement, ICWA implementation issues in PIP? No.
Tribal population density category: III;
State: Iowa;
American Indian CFSR cases reviewed[A]: 1;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 0.
Tribal population density category: III;
State: Louisiana;
American Indian CFSR cases reviewed[A]: 1;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 1;
If case(s) needing improvement, ICWA implementation issues in PIP? Yes.
Tribal population density category: IV;
State: Arkansas;
American Indian CFSR cases reviewed[A]: 2;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 2;
If case(s) needing improvement, ICWA implementation issues in PIP? Yes.
Tribal population density category: IV;
State: Missouri;
American Indian CFSR cases reviewed[A]: 1;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 0.
State: Ohio;
American Indian CFSR cases reviewed[A]: 2;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 2;
If case(s) needing improvement, ICWA implementation issues in PIP? Yes.
Total;
State: 20;
American Indian CFSR cases reviewed[A]: 87;
American Indian CFSR cases rated needing improvement in preserving a
child's connections: 23.
Sources: James Bell Associates and GAO review of state program
improvement plans.
[A] Does not include children of "two or more races."
[End of table]
Conclusions:
ICWA created important protections to prevent state child welfare
agencies and courts from inappropriately separating American Indian
children from their families. More than 25 years after it was enacted,
however, we know very little about the effect of this law on moving
American Indian children in foster care to permanent homes in a timely
manner, while ensuring their safety and well-being. The scarcity of
data on outcomes for children subject to the law, along with variations
in how individual states, courts, social workers, and tribes interpret
and implement ICWA, make it difficult to generalize about how the law
is being implemented or its effect on American Indian children. Our
discussions with tribal officials, as well as our review of the limited
information on ICWA implementation from the CFSRs, indicate that some
problems with ICWA implementation are occurring, although we cannot
estimate how extensive such problems are.
Gathering additional data from states about children subject to ICWA
could provide a clearer picture about ICWA's effect on children's
experiences in foster care and help determine the extent of any
systemic problems with state implementation of the law. However, any
new data collection effort would have to consider the differential
burden and costs to the states of collecting this information, given
that many states have few or no American Indians subject to the law in
their child welfare systems. With clear oversight authority, ACF would
be better able to directly monitor states' implementation of ICWA.
However, even with its current authority, the agency has not made the
most effective use of the relevant data it is able to gather as part of
its oversight of states' overall child welfare systems. For example,
ACF already collects some information on states' implementation of ICWA
through the CFSRs as part of its assessment on how well states preserve
the child's connections with family members and the child's community;
a review of the findings related to ICWA implementation could provide
an opportunity to further identify problems states are having
implementing the law and any systemic problems existing across states
that could be addressed with more specific guidance or technical
assistance. Similarly, the existing annual progress and services
reports provide an opportunity for states and tribes to address ICWA
implementation issues raised during the Child and Family Services
Reviews that have not already been addressed in states' program
improvement plans.
Recommendation for Executive Action:
To improve the usefulness of the information states are required to
provide on their ICWA compliance efforts, the Secretary of HHS should
direct the head of ACF to (1) review the ICWA implementation issues
identified in its CFSRs, (2) require states to discuss in their annual
progress reports any significant ICWA issues not addressed in their
program improvement plans, and (3) consider using the information on
ICWA implementation in the CFSRs, annual progress and services reports,
and program improvement plans to target guidance and assistance to
states in addressing any identified issues.
Agency Comments and Our Evaluation:
We provided a draft of this report to HHS and the Department of the
Interior for comments and their responses are reproduced in appendices
III and IV, respectively. HHS also provided technical comments, which
we incorporated as appropriate. The Department of the Interior's BIA
stated that it had no comments on the report as it has no oversight
authority for states' implementation of ICWA;
however, it noted that the report's information on ICWA grant funding
is accurate.
HHS disagreed with our conclusions and recommendation. While HHS stated
that it shares GAO's concerns regarding states' implementation of ICWA,
it emphasized that it does not have the authority, resources, or
expertise to address GAO's recommendation. HHS also questioned GAO's
assumption that ACF is the most appropriate oversight agency for ICWA
instead of another federal agency, such as BIA. HHS further commented
that there were limitations in data collection because we focused on
states' implementation of ICWA, while HHS's Indian Health Service
stated that there is inadequate knowledge on which to base a realistic
improvement plan and proposed an expanded study examining both state
and tribal ICWA issues.
Our report recognizes HHS's limited authority with respect to ICWA and
our recommendation offers a way for the agency to assist states within
its existing authority and resources as part of its current process for
overseeing states' child welfare systems. While HHS does not have
specific oversight authority with respect to ICWA, it is responsible
for ensuring that states provide meaningful information about their
ICWA compliance efforts as part of Title IV-B's reporting requirements
and, in fact, has issued guidance to states on ICWA implementation. We
continue to believe that HHS could better use the ICWA information it
already gathers during its CFSR reviews to improve the usefulness of
states' submissions on ICWA compliance. The information gathered by
HHS, along with issues identified by tribes and states, suggest that
some states could benefit from additional guidance on effective ICWA
implementation. Given that the Department of the Interior does not have
any authority with respect to states' implementation of ICWA and given
HHS's child welfare expertise and its existing systems for analyzing
child welfare data and providing assistance to states, we believe that
HHS is in the best position to continue to assist states in their ICWA
reporting and implementation efforts. Further, we believe that action
to improve state efforts using existing information should not wait
until further study of state and tribal issues provides more
comprehensive information about ICWA implementation.
We are sending copies of this report to the Secretary of HHS, the
Secretary of the Department of the Interior, appropriate congressional
committees, and other interested parties. We will also make copies
available to others upon request. In addition, the report will be
available at no charge on GAO's Web site at http://www.gao.gov.
If you have any questions or wish to discuss this report further,
please call me at (202) 512-8403 or Lacinda Ayers at (206) 654-5591.
Key contributors to this report are listed in appendix V.
Signed by:
Cornelia M. Ashby:
Director, Education, Workforce, and Income Security Issues:
[End of section]
Appendix I: Scope and Methodology:
We used several different methodologies to examine the factors
influencing placement decisions for children subject to ICWA, the
foster care experiences of these children compared to those of other
children, and federal oversight of states' implementation of ICWA.
Specifically, we collected information by:
* Analyzing data from states with information systems that could
identify children subject to ICWA;
* Surveying state child welfare officials through a web-based
questionnaire;
* Conducting site visits to five states;
* Interviewing ACF and BIA central office and regional officials;
* Reviewing applicable laws and regulations;
* Reviewing 2004 Annual Progress and Services Reports for 50 states and
the District of Columbia;
* Reviewing final CFSR reports for all states and the District of
Columbia and Program Improvement Plans for 47 states;
and:
* Soliciting input from federally recognized tribes by conducting
tribal panels, interviewing regional intertribal organizations, and
sending letters to federally recognized tribes requesting their input.
While our report focused on children involuntarily removed from their
home and placed in state foster care due to abuse or neglect, we also
gathered some limited information about how ICWA is implemented with
regard to children who are voluntarily relinquished by their parents
for adoption. In addition to discussing voluntary adoptions with tribal
officials we interviewed, we interviewed officials at nine private
adoption agencies that handle ICWA cases in the states we visited,
interviewed attorneys with the American Academy of Adoption Attorneys
(AAAA), and communicated with six other AAAA members who responded to
our e-mail on the AAAA listserv regarding private adoptions.
We conducted our review between December 2003 and January 2005 in
accordance with generally accepted government auditing standards.
Data on Children Subject to ICWA:
To compare the experiences of children subject to ICWA with those of
other children in foster care, we reviewed data from HHS' AFCARS
database for federal fiscal years 2000-2003 to determine whether these
data on American Indian children would be appropriate for the purposes
of our review. However, these information systems do not collect data
specifically on children subject to ICWA; instead, they only require
states to report on the race and ethnicity of children in foster care-
-including American Indian/Alaskan Native--but not all American Indian
children are subject to ICWA. Furthermore, previous GAO work indicates
that the race data reported in AFCARS are not always accurate.[Footnote
14] As a result, we were unable to use these data to learn about the
foster care experiences of children subject to ICWA. However, we did
use AFCARS data for background information on American Indian children
in foster care.
We then surveyed all 50 states and the District of Columbia to
determine which states collected automated data on children subject to
ICWA in fiscal year 2003. Only five states--Oklahoma, Oregon, Rhode
Island, South Dakota, and Washington--were able to provide these data.
Because so few children subject to ICWA left foster care in Rhode
Island in fiscal year 2003, however, we are not reporting these data as
they may not be representative of the experiences of children subject
to ICWA in the state. We shared our analyses of the state data with
each state to verify their accuracy. When appropriate, we adjusted the
data to reflect comments from the states. We tested the data for
statistical significance using the chi square test and only reported
differences between groups that were statistically significant at the
95 percent confidence level.
The data provided by the four states have several limitations. Three of
the states were unable to determine the ethnicity or ICWA status for
all children who exited foster care in 2003. Table 13 shows that,
except for Oregon, the number of unidentified children represented less
than 5 percent of the total children exiting foster care in these
states. Generally, states were able to provide the length of stay,
number of placements, or exit destinations for children with known
racial or ICWA characteristics who exited care in fiscal year 2003.
When this did not occur, the unknown percentage for a specific group
rarely exceeded 1 percent of those exiting care. The unknown
percentages were higher in a few cases. For example, Oregon could not
identify the exit destination for 4 percent of Caucasian children, 5
percent of other minority children, and 3 percent of children subject
to ICWA.
Table 13: Number and Percentage of Children with Unknown Ethnicity Who
Exited Care in FY 2003 for Four States:
States: South Dakota;
Number of children who exited foster care in FY 2003: ICWA: 592;
Number of children who exited foster care in FY 2003: Caucasian: 401;
Number of children who exited foster care in FY 2003: Minority: 117;
Number of children who exited foster care in FY 2003: Ethnicity not
specified/ICWA status unknown: 2;
Total: 1,112.
States: Percentage;
Number of children who exited foster care in FY 2003: ICWA: 53.2%;
Number of children who exited foster care in FY 2003: Caucasian: 36.1%;
Number of children who exited foster care in FY 2003: Minority: 10.5%;
Number of children who exited foster care in FY 2003: Ethnicity not
specified/ICWA status unknown: 0.2%;
Total: 100%.
States: Washington;
Number of children who exited foster care in FY 2003: ICWA: 169;
Number of children who exited foster care in FY 2003: Caucasian: 3,856;
Number of children who exited foster care in FY 2003: Minority: 2,183;
Number of children who exited foster care in FY 2003: Ethnicity not
specified/ICWA status unknown: 109;
Total: 6,317.
States: Percentage;
Number of children who exited foster care in FY 2003: ICWA: 2.7%;
Number of children who exited foster care in FY 2003: Caucasian: 61.0%;
Number of children who exited foster care in FY 2003: Minority: 34.6%;
Number of children who exited foster care in FY 2003: Ethnicity not
specified/ICWA status unknown: 1.7%;
Total: 100%.
States: Oregon;
Number of children who exited foster care in FY 2003: ICWA: 214;
Number of children who exited foster care in FY 2003: Caucasian: 2,638;
Number of children who exited foster care in FY 2003: Minority: 965;
Number of children who exited foster care in FY 2003: Ethnicity not
specified/ICWA status unknown: 655;
Total: 4,472.
States: Percentage;
Number of children who exited foster care in FY 2003: ICWA: 4.8%;
Number of children who exited foster care in FY 2003: Caucasian: 59.0%;
Number of children who exited foster care in FY 2003: Minority: 21.6%;
Number of children who exited foster care in FY 2003: Ethnicity not
specified/ICWA status unknown: 14.7%;
Total: 100%.
States: Oklahoma;
Number of children who exited foster care in FY 2003: ICWA: 1,534;
Number of children who exited foster care in FY 2003: Caucasian: 3,224;
Number of children who exited foster care in FY 2003: Minority: 1,732;
Number of children who exited foster care in FY 2003: Ethnicity not
specified/ICWA status unknown: 0;
Total: 6,490.
States: Percentage;
Number of children who exited foster care in FY 2003: ICWA: 23.6%;
Number of children who exited foster care in FY 2003: Caucasian: 49.7%;
Number of children who exited foster care in FY 2003: Minority: 26.7%;
Number of children who exited foster care in FY 2003: Ethnicity not
specified/ICWA status unknown: 0.0%;
Total: 100%.
Source: Data provided by child welfare agencies in these states.
Note: Numbers may not add to 100 percent due to rounding.
[End of table]
In addition, the data from Washington includes only children who are
subject to ICWA and who are in state custody. In contrast, the data
from Oregon, Oklahoma, and South Dakota include some children who are
in the custody of a tribal court. All three states had some tribal
Title IV-E agreements in 2003 and, as a result, children who are in
tribal custody and whose tribe has a Title IV-E agreement with the
state are included in the state's data. In addition, the South Dakota
data also include some children who are in the custody of a tribal
court, but for whom the state provides services and supervision.
Survey of State Child Welfare Officials:
To obtain information on states' ICWA policies and procedures and their
experiences with children subject to ICWA, we surveyed all 50 states
and the District of Columbia using a web-based survey. To ensure the
relevance and appropriateness of the survey questions and to test that
they were consistently and reliably interpreted before they were
administered, we pre-tested the survey instrument in Idaho, Oklahoma,
Ohio, and Utah and received input from the Association on American
Indian Affairs, Casey Family Programs, and the National Indian Child
Welfare Association. In May 2004, we e-mailed a notification to the
child welfare director in each state, alerting them that a survey was
forthcoming. This notification was followed by our e-mail to the
directors containing the web link to the survey and a unique user
identification and password to access the survey. To encourage as many
states as possible to complete the survey, we conducted follow-up calls
to states that did not respond to our survey by the initial deadline.
We received responses from 47 states and the District of Columbia;
we did not receive responses from Kentucky, Hawaii, and Minnesota.
However, many states were unable to respond to all of our survey
questions and frequently responded that they did not know the answer or
that the data requested was not available at the state level. The
majority of states (28 of the 48) reported that their survey responses
were for all American Indian children involved in the child welfare
system, without regard to ICWA status. Two states reported that their
responses were based on the state, rather than federal, definition of
who is subject to ICWA. Only 14 states reported that their survey
responses were for children who are subject to the federal law. We did
not independently verify any information obtained through the survey.
However, we conducted logic tests for certain responses to corroborate
the consistency of responses within a state and contacted individual
states to clarify all identified inconsistencies. The results we report
for states that provided responses to our survey questions cannot be
generalized to nonresponding states. In many cases, less than 50
percent of the states that completed the survey responded to an
individual question, meaning that results could change to the extent
that nonresponding states differed from those that responded.
State Categorizations by Tribal Population:
We analyzed data according to the density of the tribal population in
each state to determine the extent to which state responses or data
findings were correlated with tribal density. As shown in table 14,
these categories take into account the tribal population of a state as
estimated by the Census and the tribal population within the state
eligible for BIA services.
Table 14: Criteria for Determining States' Tribal Population Density
Categories:
Category: I;
Criteria: >1% Tribal enrollment density or >1% population eligible for
BIA services density;
Number of states: 12.
Category: II;
Criteria: 0.1%-1% Tribal enrollment density;
Number of states: 12.
Category: III;
Criteria: 0%- 0.1% Tribal enrollment density;
Number of states: 10.
Category: IV;
Criteria: 0% Tribal enrollment density and 0% population eligible for
BIA services density;
Number of states: 17.
Source: 2001 Census estimates and BIA data on the percentage of people
within each state who are (1) enrolled in a tribe or (2) eligible for
BIA services.
Notes: Indiana was placed in category III; although it had 0 percent
tribal enrollment, it had a 0.1 percent population eligible for
services. None of the other category II or III states had 0 percent
tribal enrollment.
To be eligible for BIA services, an individual must be a member of a
federally recognized tribe or possess one-half or more American Indian
blood quantum from a tribe indigenous to the United States.
[End of table]
Each of the 50 states and District of Columbia was assigned to one of
four population density categories, as shown in table 15. These
categories allow us to factor in both individuals who self-identify as
possessing American Indian heritage and individuals who are tribal
members or have blood ties to a tribe. The categories were based on the
maximum of either tribal population density or density of those
eligible for services. Density was calculated as a percentage of state
population (estimated by the Census Bureau).
Category I includes states that have the greatest tribal population
density or population eligible for BIA services. States placed in
Category I had tribal enrollment densities or population eligible for
BIA services densities that exceeded 1 percent. States in categories II
and III have between 0 and 1 percent tribal population in their states,
while category IV consists of states that have no tribal population and
no population eligible for BIA services.
Table 15: Tribal Population Density Categorization by State:
Category: I;
State: Alaska;
2001 Total tribal enrollment density: 18.88;
2001 Total population eligible for BIA services density: 21.38.
Category I;
State: Arizona;
2001 Total tribal enrollment density: 4.78;
2001 Total population eligible for BIA services density: 4.04.
Category I;
State: Idaho;
2001 Total tribal enrollment density: 0.77;
2001 Total population eligible for BIA services density: 1.35.
Category I;
State: Minnesota;
2001 Total tribal enrollment density: 1.04;
2001 Total population eligible for BIA services density: 0.69.
Category I;
State: Montana;
2001 Total tribal enrollment density: 7.02;
2001 Total population eligible for BIA services density: 5.03.
Category I;
State: North Dakota;
2001 Total tribal enrollment density: 8.74;
2001 Total population eligible for BIA services density: 5.43.
Category I;
State: New Mexico;
2001 Total tribal enrollment density: 8.95;
2001 Total population eligible for BIA services density: 6.58.
Category I;
State: Oklahoma;
2001 Total tribal enrollment density: 18.19;
2001 Total population eligible for BIA services density: 13.26.
Category I;
State: Oregon;
2001 Total tribal enrollment density: 0.59;
2001 Total population eligible for BIA services density: 1.40.
Category I;
State: South Dakota;
2001 Total tribal enrollment density: 14.14;
2001 Total population eligible for BIA services density: 12.56.
Category I;
State: Washington;
2001 Total tribal enrollment density: 0.81;
2001 Total population eligible for BIA services density: 1.45.
Category I;
State: Wyoming;
2001 Total tribal enrollment densityII: 2.13;
2001 Total population eligible for BIA services density: 2.19.
Category: II;
State: California;
2001 Total tribal enrollment density: 0.15;
2001 Total population eligible for BIA services density: 0.17.
Category II;
State: Colorado;
2001 Total tribal enrollment density: 0.08;
2001 Total population eligible for BIA services density: 0.12.
Category II;
State: Kansas;
2001 Total tribal enrollment density: 0.36;
2001 Total population eligible for BIA services density: 0.25.
Category II;
State: Maine;
2001 Total tribal enrollment density: 0.57;
2001 Total population eligible for BIA services density: 0.26.
Category II;
State: Michigan;
2001 Total tribal enrollment density: 0.52;
2001 Total population eligible for BIA services density: 0.27.
Category II;
State: Mississippi;
2001 Total tribal enrollment density: 0.31;
2001 Total population eligible for BIA services density: 0.29.
Category II;
State: North Carolina;
2001 Total tribal enrollment density: 0.15;
2001 Total population eligible for BIA services density: 0.09.
Category II;
State: Nebraska;
2001 Total tribal enrollment density: 0.84;
2001 Total population eligible for BIA services density: 0.45.
Category II;
State: Nevada;
2001 Total tribal enrollment density: 0.65;
2001 Total population eligible for BIA services density: 0.58.
Category II;
State: Rhode Island;
2001 Total tribal enrollment density: 0.25;
2001 Total population eligible for BIA services density: 0.25.
Category II;
State: Utah;
2001 Total tribal enrollment density: 0.66;
2001 Total population eligible for BIA services density: 0.52.
Category II;
State: Wisconsin;
2001 Total tribal enrollment density: 0.98;
2001 Total population eligible for BIA services density: 0.63.
Category: III;
State: Alabama;
2001 Total tribal enrollment density: 0.05;
2001 Total population eligible for BIA services density: 0.05.
Category III;
State: Connecticut;
2001 Total tribal enrollment density: 0.06;
2001 Total population eligible for BIA services density: 0.06.
Category III;
State: Florida;
2001 Total tribal enrollment density: 0.02;
2001 Total population eligible for BIA services density: 0.02.
Category III;
State: Iowa;
2001 Total tribal enrollment density: 0.04;
2001 Total population eligible for BIA services density: 0.05.
Category III;
State: Indiana;
2001 Total tribal enrollment density: 0.00;
2001 Total population eligible for BIA services density: 0.01.
Category III;
State: Louisiana;
2001 Total tribal enrollment density: 0.06;
2001 Total population eligible for BIA services density: 0.02.
Category III;
State: Massachusetts;
2001 Total tribal enrollment density: 0.02;
2001 Total population eligible for BIA services density: 0.00.
Category III;
State: New York;
2001 Total tribal enrollment density: 0.10;
2001 Total population eligible for BIA services density: 0.10.
Category III;
State: South Carolina;
2001 Total tribal enrollment density: 0.06;
2001 Total population eligible for BIA services density: 0.04.
Category III;
State: Texas;
2001 Total tribal enrollment density: 0.01;
2001 Total population eligible for BIA services density: 0.01.
Category: IV;
State: Arkansas;
2001 Total tribal enrollment density: 0.00;
2001 Total population eligible for BIA services density: 0.00.
Category IV;
State: District of Columbia;
2001 Total tribal enrollment density: 0.00;
2001 Total population eligible for BIA services density: 0.00.
Category IV;
State: Delaware;
2001 Total tribal enrollment density: 0.00;
2001 Total population eligible for BIA services density: 0.00.
Category IV;
State: Georgia;
2001 Total tribal enrollment density: 0.00;
2001 Total population eligible for BIA services density: 0.00.
Category IV;
State: Hawaii;
2001 Total tribal enrollment density: 0.00;
2001 Total population eligible for BIA services density: 0.00.
Category IV;
State: Illinois;
2001 Total tribal enrollment density: 0.00;
2001 Total population eligible for BIA services density: 0.00.
Category IV;
State: Kentucky;
2001 Total tribal enrollment density: 0.00;
2001 Total population eligible for BIA services density: 0.00.
Category IV;
State: Maryland;
2001 Total tribal enrollment density: 0.00;
2001 Total population eligible for BIA services density: 0.00.
Category IV;
State: Missouri;
2001 Total tribal enrollment density: 0.00;
2001 Total population eligible for BIA services density: 0.00.
Category IV;
State: New Hampshire;
2001 Total tribal enrollment density: 0.00;
2001 Total population eligible for BIA services density: 0.00.
Category IV;
State: New Jersey;
2001 Total tribal enrollment density: 0.00;
2001 Total population eligible for BIA services density: 0.00.
Category IV;
State: Ohio;
2001 Total tribal enrollment density: 0.00;
2001 Total population eligible for BIA services density: 0.00.
Category IV;
State: Pennsylvania;
2001 Total tribal enrollment density: 0.00;
2001 Total population eligible for BIA services density: 0.00.
Category IV;
State: Tennessee;
2001 Total tribal enrollment density: 0.00;
2001 Total population eligible for BIA services density: 0.00.
Category IV;
State: Virginia;
2001 Total tribal enrollment density: 0.00;
2001 Total population eligible for BIA services density: 0.00.
Category IV;
State: Vermont;
2001 Total tribal enrollment density: 0.00;
2001 Total population eligible for BIA services density: 0.00.
Category IV;
State: West Virginia;
2001 Total tribal enrollment density: 0.00;
2001 Total population eligible for BIA services density: 0.00.
Source: 2001 Census estimates based on 2000 Census data and BIA data on
the percentage of people within each state who are (1) enrolled in a
tribe or (2) eligible for BIA services.
[End of table]
Site Visit to States:
To obtain a more detailed understanding of how states implement ICWA,
we conducted site visits to California, Oklahoma, Oregon, Rhode Island,
and South Dakota. We selected states based on geographic diversity, the
nature of state-tribal relations, the number of federally recognized
tribes, and the size of the American Indian population. During our site
visits, we interviewed state and local child welfare staff, tribal
officials from at least two federally recognized tribes in each state
(except in Rhode Island, which has only one federally recognized
tribe), state court judges, and representatives from private adoption
agencies that handle ICWA cases. We collected and reviewed relevant
documentation from these site visits. In addition, we spoke with a
variety of people in the child welfare field about their knowledge of
the effect of states' implementation of ICWA on children subject to the
law, including academic researchers, attorneys, child welfare
advocates, and a state court judge from Utah.
Federal Oversight:
To learn about the federal government's role in overseeing states'
implementation of ICWA, we examined relevant federal regulations and
guidelines, as well as ACF's program instructions to states and tribes
related to ICWA. We interviewed officials from ACF's central office and
all 10 of its regional offices. We also interviewed officials from
BIA's central office and social workers from 8 of its regional offices.
To examine the extent to which states report their progress in
implementing ICWA to ACF, we also reviewed excerpts of the 2004 Annual
Progress and Services Reports states submitted to ACF covering their
ICWA compliance activities during federal fiscal years 2000-2004 for
all 50 states and the District of Columbia.
To determine the extent to which the CFSRs evaluated ICWA activities in
the states, we reviewed final CFSR reports for all 50 states and the
District of Columbia. We also reviewed Program Improvement Plans from
47 states to determine the extent to which states attempted to correct
ICWA weaknesses surfaced in the CFSR final reports.
Tribes and Tribal Organizations Contacted:
During the course of this review, we communicated with 161 tribes and
20 tribal organizations about states' implementation of ICWA. We
visited officials from 10 tribes as part of our site visits and spoke
with representatives from 87 tribes and tribal organizations at
multiple panel discussions we conducted at American Indian conferences
and site visits (the number of tribes that participated in the panels
may be undercounted because some participants did not sign in). We held
two panel discussions during our site visit to Oklahoma in March 2004
at Norman and Tulsa; three panel discussions at the National Indian
Child Welfare Association conference in April 2004 at Denver, Colorado;
two panel discussions at the California State ICWA Conference in June
2004 at Lakeside, California; and two panel discussions at the National
Congress of American Indians 2004 Mid-Year Session in June 2004 at
Uncasville, Connecticut. In addition, we collaborated with 9 regional
intertribal organizations to organize telephone conferences, during
which we spoke to representatives from 44 tribes.
To ensure the receipt of sufficient tribal input, we sent a letter in
July 2004 to 591 federally recognized tribal governments, informing
them of our review and requesting their input. Representatives from 74
tribes and 5 tribal organizations called, wrote, or e-mailed us in
response to this letter. We asked tribes to respond to four questions:
(1) In general, how well does your state implement ICWA and how
frequently do problematic situations arise? (2) What benefits does ICWA
provide to Indian children in state custody in terms of safety,
permanency, and well-being and in what ways, if any, does ICWA delay or
hinder your state's ability to keep Indian children safe and to place
them in permanent homes in a timely manner? (3) Are there any
challenges that exist to the effective implementation of ICWA and do
you have any suggestions for federal action that could improve the
placement of Indian children in permanent homes in a more timely
manner? (4) Is there any other information you would like to provide
about your tribe's experiences with ICWA? Because we did not specify a
particular format for tribes to use, the responses we received varied
in length, type, and content.
Following are the names of the tribes and tribal organizations with
whom we had contact through our site visits, tribal panels, telephone
conferences, or our letter asking for tribal input.
Tribes:
* Absentee-Shawnee Tribe of Indians of Oklahoma:
* Agua Caliente Band of Cahuilla Indians of the Agua Caliente Indian
Reservation, California:
* Apache Tribe of Oklahoma:
* Arapahoe Tribe of the Wind River Reservation, Wyoming:
* Asa'carsarmiut Tribe, Alaska:
* Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation,
Montana:
* Bay Mills Indian Community, Michigan:
* Bear River Band of the Rohnerville Rancheria, California:
* Berry Creek Rancheria of Maidu Indians of California:
* Big Lagoon Rancheria, California:
* Blackfeet Tribe of the Blackfeet Indian Reservation of Montana:
* Burns Paiute Tribe of the Burns Paiute Indian Colony of Oregon:
* Caddo Nation of Oklahoma:
* Central Council of the Tlingit & Haida Indian Tribes, Alaska:
* Cher-Ae Heights Indian Community of the Trinidad Rancheria,
California:
* Cherokee Nation, Oklahoma:
* Chevak Native Village, Alaska:
* Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South
Dakota:
* Cheyenne-Arapaho Tribes of Oklahoma:
* Chickaloon Native Village, Alaska:
* Chickasaw Nation, Oklahoma:
* Chilkat Indian Village (Klukwan), Alaska:
* Chippewa-Cree Indians of the Rocky Boy's Reservation, Montana:
* Chitimacha Tribe of Louisiana:
* Citizen Potawatomi Nation, Oklahoma:
* Cocopah Tribe of Arizona:
* Coeur D'Alene Tribe of the Coeur D'Alene Reservation, Idaho:
* Comanche Nation, Oklahoma:
* Confederated Salish & Kootenai Tribes of the Flathead Reservation,
Montana:
* Confederated Tribes and Bands of the Yakama Nation, Washington:
* Confederated Tribes of the Chehalis Reservation, Washington:
* Confederated Tribes of the Colville Reservation, Washington:
* Confederated Tribes of the Grand Ronde Community of Oregon:
* Confederated Tribes of the Siletz Reservation, Oregon:
* Confederated Tribes of the Umatilla Reservation, Oregon:
* Cowlitz Indian Tribe, Washington:
* Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota:
* Crow Tribe of Montana:
* Delaware Nation, Oklahoma:
* Dry Creek Rancheria of Pomo Indians of California:
* Eastern Pequot Tribal Nation, Connecticut (Not a federally recognized
tribe):
* Fort Belknap Indian Community of the Fort Belknap Reservation of
Montana:
* Fort McDermitt Paiute and Shoshone Tribes of the Fort McDermitt
Indian Reservation, Nevada and Oregon:
* Fort McDowell Yavapai Nation, Arizona:
* Fort Mojave Indian Tribe of Arizona, California & Nevada:
* Galena Village (aka Louden Village), Alaska:
* Gila River Indian Community of the Gila River Indian Reservation,
Arizona:
* Gulkana Village, Alaska:
* Havasupai Tribe of the Havasupai Reservation, Arizona:
* Houlton Band of Maliseet Indians of Maine:
* Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona:
* Ione Band of Miwok Indians of California:
* Jamestown S'Klallam Tribe of Washington:
* Karuk Tribe of California:
* Kickapoo Tribe of Oklahoma:
* Kiowa Indian Tribe of Oklahoma:
* Klamath Indian Tribe of Oregon:
* La Jolla Band of Luiseno Mission Indians of the La Jolla Reservation,
California:
* La Posta Band of Diegueno Mission Indians of the La Posta Indian
Reservation, California:
* Lac Courte Oreilles Band of Lake Superior Chippewa Indians of
Wisconsin:
* Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du
Flambeau Reservation of Wisconsin:
* Little Traverse Bay Band of Odawa Indians, Michigan:
* Lumbee-Cheraw Tribe of North Carolina (Not a federally recognized
tribe):
* Makah Indian Tribe of the Makah Indian Reservation, Washington:
* Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan:
* Menominee Indian Tribe of Wisconsin:
* Metlakatla Indian Community, Annette Island Reserve, Alaska:
* Miami Tribe of Oklahoma:
* Minnesota Chippewa Tribe, Minnesota (Leech Lake Band):
* Minnesota Chippewa Tribe, Minnesota (White Earth Band):
* Mooretown Rancheria of Maidu Indians of California:
* Morongo Band of Cahuilla Mission Indians of the Morongo Reservation,
California:
* Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington:
* Muscogee (Creek) Nation, Oklahoma:
* Narragansett Indian Tribe of Rhode Island:
* Native Village of Ambler, Alaska:
* Native Village of Buckland, Alaska:
* Native Village of Eyak (Cordova), Alaska:
* Native Village of Kiana, Alaska:
* Native Village of Kivalina, Alaska:
* Native Village of Kotzebue, Alaska:
* Native Village of Koyuk, Alaska:
* Native Village of Kwinhagak (aka Quinhagak), Alaska:
* Native Village of Larsen Bay, Alaska:
* Native Village of Mekoryuk, Alaska:
* Native Village of Noatak, Alaska:
* Native Village of Port Graham, Alaska:
* Native Village of Port Lions, Alaska:
* Native Village of Ruby, Alaska:
* Native Village of Selawik, Alaska:
* Native Village of Tanacross, Alaska:
* Native Village of Tazlina, Alaska:
* Native Village of Unalakleet, Alaska:
* Native Village of Venetie Tribal Government (Artic Village and Native
Village of Venetie), Alaska:
* Navajo Nation, Arizona, New Mexico & Utah:
* Newhalen Village, Alaska:
* Nez Perce Tribe of Idaho:
* Ninilchik Village, Alaska:
* Nisqually Indian Tribe of the Nisqually Reservation, Washington:
* Noorvik Native Community, Alaska:
* Oneida Nation of New York:
* Oneida Tribe of Indians of Wisconsin:
* Organized Village of Kwethluk, Alaska:
* Osage Tribe, Oklahoma:
* Otoe-Missouria Tribe of Indians, Oklahoma:
* Paiute-Shoshone Tribe of the Fallon Reservation and Colony, Nevada:
* Pala Band of Luiseno Mission Indians of the Pala Reservation,
California:
* Pascua Yaqui Tribe of Arizona:
* Passamaquoddy Tribe of Maine:
* Pawnee Nation of Oklahoma:
* Penobscot Tribe of Maine:
* Pokagon Band of Potawatomi Indians, Michigan and Indiana:
* Ponca Tribe of Nebraska:
* Pueblo of Acoma, New Mexico:
* Pueblo of Laguna, New Mexico:
* Pueblo of San Juan, New Mexico:
* Quapaw Tribe of Indians, Oklahoma:
* Quechan Tribe of the Fort Yuma Indian Reservation, California &
Arizona:
* Quinault Tribe of the Quinault Reservation, Washington:
* Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin:
* Reno-Sparks Indian Colony, Nevada:
* Rincon Band of Luiseno Mission Indians of the Rincon Reservation,
California:
* Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota:
* Sac & Fox Nation, Oklahoma:
* Saginaw Chippewa Indian Tribe of Michigan:
* Salt River Pima-Maricopa Indian Community of the Salt River
Reservation, Arizona:
* Samish Indian Tribe, Washington:
* San Carlos Apache Tribe of the San Carlos Reservation, Arizona:
* Santa Ysabel Band of Diegueno Mission Indians of the Santa Ysabel
Reservation, California:
* Santee Sioux Nation, Nebraska:
* Schaghticoke Tribal Nation, Connecticut (Not a federally recognized
tribe):
* Seminole Nation of Oklahoma:
* Shingle Springs Band of Miwok Indians, Shingle Springs Rancheria
(Verona Tract), California:
* Shoalwater Bay Tribe of the Shoalwater Bay Indian Reservation,
Washington:
* Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho:
* Smith River Rancheria, California:
* St. Regis Band of Mohawk Indians of New York:
* Standing Rock Sioux Tribe of North & South Dakota:
* Stockbridge Munsee Community, Wisconsin:
* Suquamish Indian Tribe of the Port Madison Reservation, Washington:
* Three Affiliated Tribes of the Fort Berthold Reservation, North
Dakota:
* Tohono O'odham Nation of Arizona:
* Tulalip Tribes of the Tulalip Reservation, Washington:
* United Keetoowah Band of Cherokee Indians in Oklahoma:
* Upper Sioux Community, Minnesota:
* Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New
Mexico & Utah:
* Village of Crooked Creek, Alaska:
* Village of Dot Lake, Alaska:
* Village of Kalskag, Alaska:
* Village of Old Harbor, Alaska:
* Wampanoag Tribe of Gay Head (Aquinnah) of Massachusetts:
* Washoe Tribe of Nevada & California (Carson Colony, Dresslerville
Colony, Woodfords Community, Stewart Community, & Washoe Ranches):
* White Mountain Apache Tribe of the Fort Apache Reservation, Arizona:
* Wichita and Affiliated Tribes (Wichita, Keechi, Waco & Tawakonie),
Oklahoma:
* Winnebago Tribe of Nebraska Wyandotte Nation, Oklahoma:
* Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona:
* Yerington Paiute Tribe of the Yerington Colony & Campbell Ranch,
Nevada:
* Ysleta Del Sur Pueblo of Texas:
* Yupiit of Andreafski, Alaska:
* Yurok Tribe of the Yurok Reservation, California:
Tribal Organizations:
* Affiliated Tribes of Northwest Indians:
* Alaska Inter-Tribal Council:
* Aleutian/Pribilof Islands Association:
* All Indian Pueblo Council:
* Association of Village Council Presidents, Inc.:
* California Tribal TANF Partnership:
* Great Lakes Intertribal Council:
* Inter Tribal Council of Arizona, Inc.:
* Inter-Tribal Council of Nevada:
* Kodiak Area Native Association:
* Maniilaq Association:
* Midwest Alliance of Sovereign Tribes:
* Montana-Wyoming Tribal Leaders Council:
* National Indian Child Welfare Association:
* Southern California Indian Center:
* Tanana Chiefs Conference:
* Two Feathers Native American Family Services:
* United South and Eastern Tribes, Inc.:
* United Tribes Technical College:
* Urban American Indian Involvement, Inc.
[End of section]
Appendix II: Children Exiting Foster Care in Four States, FY 2003:
Figure 16: FY 2003 Foster Care Exits in South Dakota:
[See PDF for image]
Note: South Dakota was not able to identify the race or ethnicity for
all children who exited foster care. The percentage of children with
unknown ethnicity who exited foster care in fiscal year 2003 was less
than 0.2 percent.
[End of figure]
Figure 17: FY 2003 Foster Care Exits in Washington:
[See PDF for image]
Note: Washington was not able to identify the race or ethnicity for all
children who exited foster care. The percentage of children with
unknown ethnicity who exited foster care in fiscal year 2003 was 1.7
percent.
[End of figure]
Figure 18: FY 2003 Foster Care Exits in Oregon:
[See PDF for image]
Note: Oregon was not able to identify the race or ethnicity for all
children exiting foster care. The percentage of children with unknown
ethnicity who exited foster care in fiscal year 2003 was 14.7 percent.
[End of figure]
Figure 19: FY 2003 Foster Care Exits in Oklahoma:
[See PDF for image]
Note: Totals may not add to 100 percent due to rounding.
[End of figure]
[End of section]
Appendix III: Comments from the Department of Health and Human
Services:
DEPARTMENT OF HEALTH & HUMAN SERVICES:
Office of Inspector General:
Washington, D.C. 20201:
MAR 21 2005:
Ms. Cornelia M. Ashby:
Director:
Education, Workforce, and Income Security Issues:
U.S. Government Accountability Office:
Washington, DC 20548:
Dear Ms. Ashby:
Enclosed are the Department's comments on the U.S. Government
Accountability Office's (GAO's) draft report entitled, "Indian Child
Welfare Act Existing Information on Implementation Issues Could Be Used
to Target Guidance and Assistance to States" (GAO-05-290). The comments
represent the tentative position of the Department and are subject to
reevaluation when the final version of this report is received.
The Department provided several technical comments directly to your
staff.
The Department appreciates the opportunity to comment on this draft
report before its publication.
Sincerely,
Signed by:
Daniel R. Levinson:
Acting Inspector General:
Enclosure:
The Office of Inspector General (OIG) is transmitting the Department's
response to this draft report in our capacity as the Department's
designated focal point and coordinator for U.S. Government
Accountability Office reports. OIG has not conducted an independent
assessment of these comments and therefore expresses no opinion on
them.
COMMENTS OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES ON THE U.S.
GOVERNMENT ACCOUNTABILITY OFFICE'S DRAFT REPORT. "INDIAN CHILD WELFARE
ACT-EXISTING INFORMATION ON IMPLEMENTATION ISSUES COULD BE USED TO
TARGET GUIDANCE AND ASSISTANCE TO STATES" (GAO-05-290):
The Department of Health and Human Services (HHS) appreciates the
opportunity to comment on the Government Accountability Office's
(GAO's) draft report.
GAO Recommendation:
To improve the usefulness of the information States are required to
provide on their Indian Child Welfare Act (ICWA) compliance efforts,
the Secretary of HHS should direct the head of ACF to: (1) review the
ICWA implementation issues identified in its Child and Family Service
Reviews (MR); (2) require States to discuss in their annual progress
reports any significant ICWA issues not addressed in their program
improvement plans; and (3) consider using the information on ICWA
implementation in the CFSRs, annual progress and services reports, and
program improvement plans to target guidance and assistance to States
in addressing any identified issues.
HHS Comments:
While we share GAO concerns regarding ICWA and how States are adhering
to and implementing this mandate, HHS disagrees with the conclusions
and recommendations of this report. HHS does not agree that merely
identifying ICWA problems more systematically would better position HHS
to provide guidance and technical assistance. GAO has clearly
identified in its report that the primary issue with ICWA compliance,
from a Federal perspective, is the lack of specific oversight authority
and the attendant resources.
Some of GAO's recommendations for remedial action by Congress or HHS
rely on the assumption that HHS, Administration for Children and
Families (ACF), which monitors State compliance of Federal child
welfare laws, is the most appropriate oversight agency for ICWA, rather
than the Bureau of Indian Affairs in the Department of Interior. The
report notes on page 2, first paragraph, line 4, that "..ICWA did not
explicitly grant any Federal agency oversight authority regarding
States' implementation of ICWA.." A similar statement appears in the
last paragraph on page 4. The assumption of ACF's responsibility is a
significant one, given the action items for ACF recommended in the
report.
ACF does not have the authority, resources, or expertise to provide the
level of effort to address the recommendations GAO identified. ACF's
current "oversight" of ICWA is commensurate with ACF's authority,
expertise, and resources.
Since this study was initiated to determine the States' implementation
and compliance with ICWA, there were many limitations in the collection
of meaningful data as well as in the survey's comprehensiveness. The
study's primary contribution is in its validation of the need for
further study.
The HHS, Indian Health Service feels that without an examination of
both the State and Tribal issues involved, there is inadequate
knowledge on which to base a realistic improvement plan on the issues
of Indian Child Welfare.
The study's purposes should be expanded to include the following:
(1) The interaction process involving the Tribal issues and the States'
child welfare systems;
(2) Determination of barriers to the Tribes' exercising their
jurisdictional options to intervene in custody cases;
(3) An assessment of Tribal foster care and adoption resources;
(4) An assessment of the Tribal Title IV-E demonstration projects;
(5) An evaluation of training of the States' child protection; staff
regarding ICWA; and:
(6) An assessment of the impact on Tribes' nonreceipt of Title IV-E
funds in comparison to the States' receipt of this funding.
[End of section]
Appendix IV: Comments from the Department of the Interior:
United States Department of the Interior:
OFFICE OF THE SECRETARY:
Washington, DC 20240:
MAR 22 2005:
Ms. Cornelia M. Ashby:
Director, Education, Workforce, and Income Security Issues:
Government Accountability Office:
Washington, D.C. 20548:
Dear Ms. Ashby:
The Bureau of Indian Affairs appreciates the opportunity to provide
comments on the draft report of the Government Accountability Office
entitled INDIAN CHILD WELFARE ACT. Existing Information on
Implementation Issues Could Be Used to Target Guidance and Assistance
to States.
As discussed in the draft report; the Bureau's responsibilities under
the Indian Child Welfare Act include administering grants to Indian
tribes and tribal organizations for operating child and family service
programs and assisting states in identifying the tribal affiliation of
a child upon request. The Bureau has no oversight authority for a
state's implementation of the Act. As such, the Bureau has no comments
to offer on the report findings or recommendation. other than to note
that the information regarding grant funding is accurate.
If you require additional information., please contact Mr. Larry Blair.
Chief, Division of Human Services, at (202) 513-7621.
Sincerely,
Signed by:
[Signature unreadable]
Assistant Secretary - Policy, Management and Budget:
[End of section]
Appendix V: GAO Contacts and Acknowledgments:
GAO Contacts:
Lacinda Ayers (206) 654-5591;
Michelle St. Pierre (617) 788-0558:
Acknowledgments:
In addition to those named above, Jerry Aiken, Elizabeth Caplick,
Shirley Hwang, and Bob Sampson made key contributions to this report.
Carolyn Boyce, Corinna Nicolaou, and Diana Pietrowiak provided key
technical assistance; Daniel Schwimer provided legal assistance.
FOOTNOTES
[1] See Eddie F. Brown and others, "Using Tribal/State Title IV-E
Agreements to Help American Indian Tribes Access Foster Care and
Adoption Funding," Child Welfare, vol. LXXXIII, no. 4 (2004).
[2] However, previous GAO work indicates that the race and ethnicity
data reported in AFCARS are not always accurate. See GAO, Child
Welfare: Most States Are Developing Statewide Information Systems, but
the Reliability of Child Welfare Data Could be Improved, GAO-03-809
(Washington, D.C.: July 31, 2003). In addition, while AFCARS data do
not usually include American Indian children in tribal custody, these
children are included in the AFCARS data for some states, affecting the
comparability of state data on American Indian children. For example,
when a tribe receives Title IV-E payments for children in tribal
custody, these children are also included in a state's AFCARS data.
[3] Urban Institute, The Continuing Evolution of State Kinship Care
Policies (Washington, D.C., 2002).
[4] See GAO, Foster Care: Recent Legislation Helps States Focus on
Finding Permanent Homes for Children, but Long-Standing Barriers
Remain, GAO-02-585 (Washington, D.C.: June 28, 2002).
[5] See GAO, Foster Care: States' Early Experiences Implementing the
Adoption and Safe Families Act, GAO/HEHS-00-1 (Washington, D.C.: Dec.
22, 1999) and GAO-02-585.
[6] Rhode Island also provided data on children subject to ICWA.
However, we are not reporting this information because so few children
subject to ICWA left foster care in Rhode Island in fiscal year 2003
and this data may not be representative of the experiences of children
subject to ICWA in the state.
[7] When collecting data on children who exit care, data on children
currently in foster care are not included and children with shorter
foster care stays are overrepresented, biasing the measured outcomes.
For example, the overall lengths of stay for children exiting care tend
to appear shorter due to this overrepresentation.
[8] We tested the data for statistical significance using the chi
square test and have reported differences between groups that are
statistically significant at the 95 percent confidence level.
[9] According to Washington officials, children who are subject to ICWA
in their state are less likely to exit foster care within 30 days than
other children, but are slightly more likely to exit care when they
remain in care for more than 30 days. Oregon officials noted that
children subject to ICWA in their state are less likely to exit care
during their first month of foster care than other children. However,
by the 24TH month of care, the percentage of children subject to ICWA
and other minority children exiting foster care exceeds the percentage
of Caucasian children exiting foster care.
[10] Oklahoma did not include data on number of placements for children
subject to ICWA in response to our data request.
[11] Oregon officials explained that, compared to children subject to
ICWA, a higher percentage of Caucasian children remain in foster care
for more than 24 months, which may be a factor in Caucasian children
being more likely to have four or more placements. They said that their
data show that children subject to ICWA and Caucasian children have a
similar number of placements during their first 12 months in foster
care.
[12] Brown, E. F; Limb, G. E; Munoz, R; and Clifford, C. A; Title IV-B
Child and Family Services Plans: An Evaluation of Specific Measures
Taken by States to Comply with the Indian Child Welfare Act (Seattle,
Wash.: Casey Family Programs, 2001).
[13] ACF does not have case specific data on tribal notification and
placement for cases involving American Indian children for CFSRs
completed in 2001.
[14] GAO, Child Welfare: Most States Are Developing Statewide
Information Systems, but the Reliability of Child Welfare Data Could Be
Improved, GAO-03-809 (Washington, D.C.: July 31, 2003).
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