B. Assimilation through Child Welfare Policy
Education was not the only tool used to assimilate Native American children. For years, Native children were removed from their homes at alarming rates and given new families - white families - either through adoption or foster care. As might be expected, the decision to remove Native children and place them with white families was not made by Native Americans, but by foreign institutions, such as state and federal courts.
The idea that Native children would be better off living with white families seemed to take its strongest form during the Termination Era, when federal policy was directed at assimilating all Native Americans. During this time, the federal government encouraged private organizations, such as religious groups and state agencies, to get involved in the lives of Native American youths.
An example of such an agency was the Indian Adoption Project, which took place in the 1950s at the urging of the federal government. It was created to place Native children with non-Native parents so they would receive better care. Before it ceased operating, the Indian Adoption Project had placed nearly 400 Native children with white parents. With regards to religious groups, the practices varied greatly between denominations, but at least one denomination displaced more than 5,000 Native children per year in the years preceding the passage of the Indian Child Welfare Act of 1978. Contemporaneous with these types of projects, the BIA began substantially involving the states in Native child welfare decisions by referring the majority of their cases to state agencies and courts. Thus, for the first time in history, state welfare agencies and courts were interacting with significant numbers of Native American children.
Involving states in Native child welfare decisions created jurisprudence that fundamentally misunderstood Native culture and ultimately tried to alter and assimilate it. State courts took it upon themselves to define proper child-rearing techniques and when Native parents did not follow their ideals for child rearing, they removed Native children from the care of their parents. Teachers and social service workers, who were often responsible for initiating these types of cases, frequently agreed with the court's take on proper child-rearing techniques. The problem with this practice was its assumption that there was only one proper method of parenting children. Simply put, it failed to take into account Native concepts of child rearing.
For instance, courts typically believed that only the mother and father of a child constituted a “family” that could properly raise a child. Thus, if the child was not predominantly in the care of these two parents, courts would find neglect or endangerment and remove the child from the home. Although Native communities' parenting techniques vary greatly, their conceptions of family tend to be broader and more inclusive than those associated with the Anglo-nuclear family. Often, Native families are comprised of a “large network of relationships” that includes a “multi-generational complex of people and clan and kinship Thus, a child may literally have dozens or hundreds of relatives who “are counted as close, responsible members of the Courts rarely recognized this concept of family to the detriment of Native children.
The problems associated with state social services and courts handling child welfare cases go beyond mere misunderstanding of Native child-rearing techniques. There is evidence of procedural biases that contributed to Native children displacements. For example, there were due process concerns related to lack of notice to tribal parents, an inability to claim a defense to the court action, and the use of coercion to get Native parents to waive their rights with respect to their children. Additionally, the law was unevenly applied to Native Americans as compared to other races, especially in cases that involved alcohol abuse.
The result of the federal government's implicit - and sometimes explicit - approval of these child welfare policies was the removal and subsequent assimilation of Native children at astounding rates. Conservative estimates indicate that during the 1960s and 1970s, approximately one out of every three Native youth were removed from their homes. The overwhelming majority of these removals resulted in placements outside the Native community, with substantial numbers of children being completely removed from the state in which they lived. The rates of placement outside the home differed from state-to-state, but invariably a Native child was far more likely to have been removed from his or her home than a white child. In some states, the rates for Native American removals were nearly twenty times higher than those of white children. Furthermore, although white adoptions of Native children were commonplace in many states, the reverse situation - where a white child was placed with another race - was virtually nonexistent.
Fortunately, in 1978 Congress passed the Indian Child Welfare Act (“ICWA”) in an attempt to correct the serious problems surrounding Natives in the child welfare system. Congress noted the high rates of child displacement and realized that the long-term survival of Native American peoples and cultures was put in great jeopardy when Native children were raised by non-Natives and denied access to Native culture. Moreover, they recognized that a fundamental aspect of Native autonomy is the ability to participate in child custody proceedings.
ICWA gives Native nations exclusive jurisdiction over child custody cases when the child is residing or domiciled on the reservation. The Act also instructed state courts to transfer any Native child custody cases to tribal courts upon request of the parents or the tribe, unless there was good cause not to. Finally, ICWA laid out a hierarchy of people with whom a Native child should be placed in the event that the child must be removed from the home of his or her parents. The hierarchy in the Act is designed to keep Native children with their extended family when possible, and within the Native nation if there is no suitable extended family available.
The ICWA was passed to remedy an existing problem. Although its impact has been impeded by some court systems, it has accomplished some of its goals. The rate of removal for Native American children from their families has decreased significantly. Unfortunately, the number of Native American children removed from their homes continues to be disproportionately higher than for non-Indian families, and by some measures, as many as 20% of Native children are still being placed outside of their nations. Additionally, the effects of Native American adoptions that occurred before ICWA continue to be felt and have had a lasting impact for many Native nations.
