V. Potential Solution: Building on the Strength of American Indian Culture

Recognizing the lasting, harmful, and collective effects that the assimilation era policies had on American Indians, such as the forced removal of American Indian children to be placed in boarding schools, two congressional policies mark a shift in U.S. government philosophy about its relationship with tribal nations. First, Congress enacted the Indian Child Welfare Act (ICWA), which represented a reversal in U.S. policy from removing American Indian children from their homes, to ensuring safe placements in American Indian homes. Second, Congress authorized tribes to develop their own welfare-to-work programs called Tribal TANF. Both ICWA and Tribal TANF are tools tribes can use to assert their sovereignty and work to better the lives of their members.

The intention of Congress when it passed ICWA in 1978 was to attempt to remedy the U.S. government's past wrongs. Part of the official findings included the fact"that an alarmingly high percentage of Indian families are broken up by the often unwarranted removal of their children from them by non-tribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions." The purpose of ICWA was to keep Indian children within their Indian Community when removal was required. It established procedures and standards that served a unique function in U.S. legislative history, strengthening tribal sovereignty. ICWA grants jurisdiction to tribal courts in proceedings involving an American Indian child and requires courts to consider tribal culture and customs when deciding what is in the best interests of the Indian child; a far cry from the policies perpetuated during the assimilation era. It also requires that American Indian definitions regarding family life be used in order to guide the appropriate application of the Act.

The role of the child protection worker is to look out for the safety and well-being of children who may be in danger, requiring a measured prediction of future conduct. A major reason why American Indian children were removed from their homes at alarmingly high rates during the 1960s and 1970s was because predictors, which are sometimes accurate in Euro-American family culture, are not reliable at predicting such conduct in the context of the American Indian families. Therefore, ICWA is a strong statement recognizing that these cultural differences are not a good basis for determining whether parents are unfit, and sets up alternative guidelines for child protection workers to follow.

ICWA is triggered whenever an Indian child is the subject of a child protection proceeding. Tribes have exclusive jurisdiction to determine child placement for children who are residents of the reservation. They can then request a transfer from state to tribal court in cases concerning an American Indian child with ties to the tribe, and grants tribes a right of intervention in state court proceedings. ICWA contains a placement hierarchy to be applied whenever an out-of-home placement is required for an American Indian child. However, some state courts have narrowly interpreted ICWA language and have developed exceptions to limit the scope of when ICWA applies. For example, the "existing Indian family" exception, which is a judicial exception, bars application of the ICWA when "either the child or the child's parents have not maintained a significant social, cultural, or political relationship with his tribe." Despite a lack of response from Congress, several states have taken a proactive approach to prevent similar judicial circumvention of the spirit of ICWA. These measures remove the difficult issue of child protection from state courts into tribal courts, thus eliminating the fear and distrust surrounding state removal of American Indian children. In tribal courts, tribal customs and preferences can look out for the best interests of tribal families.

Another opportunity for tribes to overcome the lingering effects of the boarding school era is Tribal TANF. Authorized as part of the PRWORA, Tribal TANF provides federal funding to tribes so they can administer their own TANF programs. The benefit to Tribal TANF is that subject to approval by HHS, it is not bound by the same activity and time restrictions as state programs. This allows tribes to take local economic conditions, community size, and other issues into account to tailor programs that will best serve their communities. While the Tribal TANF programs do provide more culturally sensitive programming for participants, this factor is often negated by poor economic conditions on the reservation, including high unemployment rates. Furthermore, many tribes have not taken advantage of the ability to offer Tribal TANF, because they lack the administrative expertise or because program overhead is cost prohibitive.

Another limitation to Tribal TANF is that it tends to only reach American Indians living on reservations, and does not reach urban American Indians. Recognizing this problem, and facing a disparity in outcomes for American Indians, Ramsey County, Minnesota, partnered with the American Indian Family Law Center to develop a strategy to improve outcomes for American Indian MFIP participants. Both their findings and their strategies are culturally specific. For example, they found that most service providers' primary method of contact with clients was by telephone, which was a barrier to open communication for American Indian clients. Two county financial workers were relocated to the American Indian Family Law Center to facilitate more face-to-face contact and re-open lines of communication. These are modest changes when viewed in the context of the overall system, but because important cultural differences are being openly acknowledged, they are likely to have a big impact in improving relations between government service providers and American Indian recipients.