Approved by Council, January 1975
To be reviewed
Each state in the United States has a statute which allows its agent (usually the juvenile or family court) to intrude into the privacy of a family and to consider separating the child from his/her family. Ordinarily this might occur when:
- The child has been involved in delinquent acts;
- The child is dependent or abandoned, i.e., has no recognized or legally appointed guardian;
- The child is neglected, i.e., his needs are not being met by the family; or
- The child is abused, i.e., is being hurt in his/her family.
The professed principle which governs in such cases has generally been the quest for "the best interest of the child." This principle has few standards or criteria associated with it to guide its interpretation. As a consequence there are wide variations in the way individual state's agents or courts put it into practice. This, in turn, allows and perhaps encourages society's agent to fall back on his personal vales and moral system in evaluating the child rearing of any particular family's ability to meet those needs. This estimate, however, may be based on his own individual class values which can differ radically from the culture of the child and the values of his family. Moreover, the less powerful the family, the greater the likelihood of the state's "benevolent" intrusion (especially when there are few standards and no systematic review of judgements).
For a long time state and federal government agents have intruded regularly into the families of American Indians, particularly those living on reservations. This intrusion occurs in four areas:
- where a child is held to be dependent-abandoned;
- where a child is considered to be neglected;
- when a child is considered delinquent;
- and for another reason altogether: to meet the child's "educational" needs.
In regard to the last mentioned, on some reservations, the Bureau of Indian Affairs (B.I.A., part of the Department of the Interior) has made it policy to send children as young as six years to a distant boarding school. This had formerly been widespread practice, with the overt air of "helping" Indian children enter the mainstream of American life. Now, supposedly, the practice is confined to regions where other educational opportunities have not developed, where there are difficult home situations, or where behavior has been deviant. In the past, this educational practice has had a devastating effect on several generations of Indian children. It has affected their family life, their native culture, their sense of identity, and their parenting abilities. It is quite likely that the continuation of these practices today will have the same destructive impact. Ultimately the message is the same: It is better for Indian children to be reared by others than by their parents or their own people. The complex issues relating to the B.I.A. boarding schools have recently been addressed by the American Psychiatric Association's Task Force on Indian Affairs. Their views are expressed in an Editorial in the American Journal of Psychiatry.
We would like to focus here on the fact that today American Indian children are regularly removed from their families and communities. This action is being taken by government and voluntary agencies and some religious groups, ostensibly, for reasons of dependency-abandonment or neglect.
The Association on American Indian Affairs asserts that these practices have resulted in the wholesale, and often unwarranted, removal of Indian children from their homes, reservations and people. The figures are alarming. In the state of South Dakota, on a per capita basis, approximately 16 times as many Indian children as white children are living in foster homes. In Montana, the rate is 13 times the national foster home placement rate. In Minnesota, among the Indian children, the rate of foster home placement is 5 times greater than for non-Indian children.
In the United States, one in every 200 children lives outside of his home of origin. In North Dakota, South Dakota and Nebraska one of every nine Indian children are in foster homes, adoptive homes, institutions or boarding facilities. Indian children in these states are withdrawn from their homes at a rate of 20 times the national average. In Minnesota during 1971-1972, one in every seven Indian children was in placement outside of their own homes (there were about 1,413 Indian children under 18 in adoptive placement which there were 241 Indian children under 18 in foster care). Ninety-one percent of the adoptions were in non-Indian homes. In a survey of 16 states, "approximately 85% of all Indian children in foster care are placed in non-Indian homes."
There are, then two trends which are both obvious and alarming:
- American Indian children are being placed outside of their natural homes at an enormous rate, and
- they are being given over to the care of non-Indians in very considerable numbers.
There is much clinical evidence to suggest that these Native American children placed in off-reservation non-Indian homes are at risk in their later development. Often enough they are cared for by devoted and well-intentioned foster or adoptive parents. Nonetheless, particularly in adolescence, they are subject to ethnic confusion and a pervasive sense of abandonment with its attendant multiple ramifications. Consequently, these problems combined with their early childhood preplacement experiences adversely effect their young adulthood and their own potential capacities as parents. The two trends noted above appear to be final common pathways reflecting:
- The professed policy of the bureau of Indian Affairs, state welfare agencies, and of voluntary and religious groups had been to admit Indians into the mainstream of America. While this policy has changes at higher levels of the Bureau, the change is unevenly applied at the lower levels. It is not so clear that the policy has changed among the other groups, particularly, on actively proselytizing religious groups, such as the Mormon Church.
- Alternatives to placement are either not available, not thought of, or are inaccessible for varied reasons. Families which have become disorganized or have had difficulties in providing for the needs of their children are usually well known to various agencies. The decision to place the child often assumes that other options have been tried and have failed. All too often, however, neither tribe, state nor federal agencies has made any real effort at early intervention and support for the child and his family. As a result, when things get bad enough, the only clear option appears to be placement.
- The decision to remove a child from his parents is often made by federal and state agency personnel who are poorly trained and who have limited understanding of Indian culture, or by Indian personnel with little clinical and developmental training.
- The parents may have no understanding of their rights, e.g., they may be induced to waive their parental rights voluntarily without understanding the implications. Furthermore, the child, and in most cases his parents, do not have an advocate in court to represent his and their respective interests, even if there is a court procedure.
- The decision to place the child is often made by a state court. This procedure typically fails to utilize the rich information about potential support and care readily available from the child's extended family and neighboring community. (While there has been some growth of tribal courts with greater understanding of cultural and community resources, there have been procedural and jurisdictional problems).
- The standards used in non-Indian courts in making the placement reflect the majority culture's criteria for suitability (e.g., so many square feet of space available per foster child in the home) and do not take into sufficient account what may be characteristic of the child's socio-cultural milieu. Thus Indian families are discriminated against as potential foster families.
- The tribes generally have been given little or no responsibility for controlling or monitoring the flow of monies available for child care and family welfare.
- There is no systematic review of placement judgements to insure that the child's placement offers him the least detrimental alternative.
- There is no person or agency charged with focusing on the needs of Indian children that would compile information and develop comprehensive planning models adaptable to different regions.
Recently, Indian communities have been actively involved with these threats to their survival. In some instances, tribal councils have established welfare committees to become involved with decisions pertaining to child neglect and dependence; and have adopted more stringent tribal codes governing child welfare matters. Depending on the local circumstances, such active participation on the part of tribal groups has led to a reduction of off-reservation placements. Indeed, there are some innovative efforts by Indian tribes to find and support foster homes, establish group homes and residential centers for families, and provide for other child-care services. While there are some complex issues resulting from the various degrees of jurisdictional authority, the relationship with the B.I.A., the availability of assistance from the Indian Health Service (a section of the Public Health Service), and the local or state welfare departments, coordinated working relationships are possible. The major point here is that the tribal groups have made an effort to assume parental, and in many ways, grandparental authority over the families and children in their community. Indeed, this corresponds to the increasing activity on the part of Native Americans to gain control over their own lives.
While some changes in the practice of child placement have begun on some reservations, more needs to be done. The following are recommendations related to the specific reasons given previously:
- The Bureau of Indian Affairs and state welfare agencies, which are the recipients of federal funds, should assert explicitly that a major goal of their work is to support the integrity of Indian families and communities. In the area of child placement, this policy would be implemented by recommendation #2.
- Options should be sought out and made available to Indian communities other than placement. These options should be integrated into a continuum of services under the general direction of tribal government. The options would be flexible, i.e., capable of responding to the needs of an individual family which would vary with time. Such options might include:
- in-home help, such as homemaker care, home counselor-child rearers able to work within a family for extended periods of time.
- out-of-home help such as pre-school care, after-school care, day-care, respite service, group homes, and residential treatment facilities.
Both kinds of support should be provided either by Indians or by personnel familiar with the Indian culture, and who are trained in the psychological aspects of child development.
- When placement is considered, the child and his parents should each be represented by an advocate. This would help to insure that the interests of each are represented. It is important to keep in mind that these interests are not necessarily the same, and may indeed be different from the state's interests.
- Decisions about the custody or placement of Indian children should be under the auspices of Indian tribal governments. Agency personnel and professionals should be available in an advisory capacity, but they should not be decision-makers.
- The standards that govern these decisions should be developed and monitored by appropriate groups under the auspices of the tribe. Thus the fate of a child and his family would be determined by persons who share the child's and family's socio-cultural milieu.
- Monies for the support and care of children should flow through the tribe, rather than through B.I.A. Welfare and state welfare agencies. Funds should be available for innovative responses to the needs for child care -- e.g., the funding of foster families at a rate reflecting their training, their experience and the magnitude of the child's needs; the development of group homes; the establishment of family centers; the improvement of housing to allow for better child care; arrangements for subsidized adoption, etc.
- Judgments pertaining to child-care and placement should be under systematic review. In every case the tribes should be the responsible agent for this on-going process of evaluation. The goal of the process would be to insure that the service is providing the child with the least detrimental alternative.
- Within the B.I.A. there are offices focusing on roads, business and economic development, relocation, etc. But there is no office, at any level, charged with focusing on the needs of Indians. Since it seems likely that "children's" rights cannot be secured until some particular institution has recognized them and assumed responsibility for enforcing them, this issue should be explored.
These recommendations can be formally legislated by Congress. Indeed, the Association on American Indian Affairs has made very specific legislative recommendations that would enable broad implementation of similar policies.
States, too, can respond to the spirit of these new approaches. This is evidenced by recent developments in Wisconsin. There the American Indian Child Welfare service Agency, with an all-Indian policy board, has been established with broad responsibility for supervising all child placement decisions.
A recent book concerned with the complex issues of child placement highlights the importance of the issues involved.
"....by and large society must use each child's placement as an occasion for protecting future generations of children by increasing the number of adults-to-be who are likely to be adequate parents. Only in the implementation of this policy does there lie a real opportunity for beginning to break the cycle of sickness and hardship bequeathed from one generation to the next by adults, who as children, were denied the least detrimental alternative."
1. Rodham, Hillary. Children Under the Law, Harvard Educational Review, 43, No. 4, 1973.
2. Hearings, Special Subcommittee in Indian Education, United States Senate, Washington: U.S. Government Printing Office, 1969.
3. Goldstein, George S. "The Model Dormitory", Psychiatric Annals, Vol 4, #11, Nov. 1974.
4. "A Hazard to Mental Health: Indian Boarding Schools". The American Journal of Psychiatry, 131, No 3 (March, 1973).
5. Indian Family Defense. New York: Association on American Indian Affairs, Inc., Winter, 1974, No. 1.
6. "Another Chapter in the Destruction of American Indian Families." Yale Reports. October 21, 1973, #654.
7. Statement of William Byler, Executive Director, Association on American Indian Affairs to the Subcommittee on Indian Affairs of the United States Senate, April 8, 1974.
8. Shore, James and Nicholis, W.W. "Indian Youth and Tribal Group Homes, a Whipper Man." Unpublished paper.
9. Goldstein, Joseph, Anna Freud, and Albert J. Solnit. Beyond the Best Interests of the Child. New York: The Free Press, 1973, p. 111.
1. Mnookin, Robert, Foster Care: In Whose Best Interest? Harvard Educational Review, 43, No. 4. 1973.
2. Children Who Cannot Live With Their Own Families, in Mental Health: From Infancy Through Adolescence by the Joint Commission on Mental Heath of Children, 1973.
3. Mindell, Carl, "Poverty, Mental Health and the Sioux", 1968, unpublished paper.
4. Mindell, Carl, "Some Psychological Aspects of Normal Indian Adolescents and Two Groups of Non-Indian Adolescents", 1968, unpublished paper.