Pathways Practice Digest - Winter 2014

PATHWAYSPRACTICE DIGESTWinter 2015

A Practical Forum for Services to Indian Children & Families

Inside This IssuePromising Practices in Tribal-State

Collaboration

Pathways Practice Digest is published by the National Indian Child Welfare Association5100 SW Macadam Avenue, Suite 300, Portland, Oregon, 97239P: (503) 222-4044 F: (503) 222-4007 www.nicwa.org

Contributors: David Simmons, Terry Cross, Addie Smith

Editor: Nicole Adams

CONTENTS

Promising Practices in Tribal-State Collaboration 2.

National Indian Child Welfare Association | Pathways Practice Digest Winter 2015 |

Since the passage of the Indian Child Welfare Act (ICWA) in 1978, there has been increasing

movement to enhance state policy to support ICWA and address several of the chal-lenges to American Indian and Alaska Native (AI/AN) children’s well-being. The efforts that have proven most successful have been initiated by tribal governments and AI/AN Indian organizations in collaboration with state gov-ernments. After providing some history on ICWA and the problem of noncompliance, this article describes specif-ic examples of promising developments in the area of tribal-state collaboration. Through enhanced partnership, tribes and states can work together to not only address the pervasive problem of ICWA noncompliance, but also work toward strengthening other programs and policies influencing tribal child welfare.

ICWA History and the Problem of NoncomplianceIn the late 1960s and into the 1970s, tribal advocates began to see a pattern of biased and abusive public and private child welfare practice impacting tribal communi-ties across the nation. The Association on American In-dian Affairs (AAIA) was at the forefront of investigations that documented large numbers of AI/AN children being removed from their homes by state and private adoption agencies. AAIA submitted its findings, which estimated that approximately 25–35% of all AI/AN children had been removed from their homes and placed in foster care or adoptive homes (H.R. Rep. No. 95-1386, 1978). In some states the removal numbers were even higher.

The overwhelming majority of these removals (ap-proximately 85% of foster care and 90% of adoptions) resulted in AI/AN children being placed in non-Indian homes, often far from their extended family and tribal communities (H.R. Rep. No. 95-1386, 1978). Congress responded to the crisis by enacting ICWA in 1978, which established federal requirements for states and private agencies regarding the handling of child welfare mat-ters involving AI/AN children and families. In addition, ICWA clarified the role of tribal governments in state and private child welfare matters, including the authority of tribes to intervene in state court proceedings and oper-ate their own community-based child welfare programs.

While the federal protections of ICWA have provided benefits for thousands of AI/AN children and families in public and private child welfare systems, there con-tinue to be significant challenges in fully implementing the law. Even with ICWA requirements such as active efforts designed

to reduce the flow of AI/AN children into foster care, AI/AN children continue to be over-represented in state fos-ter care systems (Summers, Woods, & Donovan, 2013).

Unfortunately, the implementation of the law is uneven in many jurisdictions. Regular oversight that could prevent noncompliance and inform efforts to correct poor perfor-mance is not available at the federal level. ICWA is the only major federal child welfare law that does not have oversight assigned to a specific federal agency and a regular evaluation of implementation, either process- or outcome-related. Reports of noncompliance go uninves-tigated by any federal agency, no implementation data is regularly collected and analyzed, and performance improvement plans are not required for agencies that are out of compliance even when the noncompliance is documented.

ICWA compliance is most often a case-by-case proce-dure dependent upon the actions and goodwill of legal parties involved, with the greatest penalty available be-ing invalidation of specific ICWA proceedings. This case-by-case approach does not effectively support system reform and relies on anecdotal information that is not generalizable or helpful in understanding larger trends in compliance. A few states have developed their own ICWA compliance systems, which have helped promote improved compliance and services to AI/AN children, but they are limited in their ability to inform federal policy-makers of national trends and help them develop federal responses.

However, despite the challenges, together, states and tribes have made inroads into addressing the issue of ICWA noncompliance, while establishing a new prece-dence of effective partnership to strengthen other poli-cies and practices.

The efforts that have proven most successful have been

initiated by tribal governments and AI/AN Indian organizations in collaboration with state governments.

continued

Promising Practices in Tribal-State Collaboration Partnerships Strengthen Tribal Child Welfare


Tribal-State Collaboration, continued

State Practices and ImprovementsPromising Practice Example

State-tribal reconciliation process to improve intergov-ernmental relationships and promote development of effective policy

Maine Wabanaki-State Truth and Reconciliation Commission. See www.mainewabanakitrc.org/.

State guide to ICWA A Guide to Compliance with the Indian Child Welfare Act pub-lished by the New York Office of Children and Family Services. See www.ocfs.state.ny.us/main/publications/ pub4757guidecompliance.pdf

ICWA checklist for state court judges Published by National Council of Juvenile and Family Court Judges. See www.ncjfcj.org/resource-library/publications/ indian-child-welfare-act-checklists-juvenile-and- family-court-judges

Mandatory training of state social workers on ICWA done jointly with tribal social workers

Washington State Social Work Academy Solution-Based ICWA Training and Curriculum

State-tribal Indian child welfare forums where repre-sentatives of each group meet regularly to discuss child welfare policy and practice issues. These forums can provide a framework for tribal-state consultation required under federal law, such as the Title IV-B con-sultation requirement regarding ICWA implementation

Several states have established these forums including Montana, North Dakota, Oklahoma, Oregon, Utah, and Washington

State-tribal court improvement forums where represen-tatives of each court system meet regularly to discuss legal, inter-jurisdictional cooperation, and court proce-dural issues

Several states have established these forums, including California, Michigan, New Mexico, New York, and Wisconsin

Pass through of federal or state social services funding to tribes, typically through contract or intergovernmen-tal agreement. Examples include: state general reve-nue, Title IV-E Foster Care and Adoption Assistance, Social Services Block Grant, Community Mental Health Services Block Grant, and Medicaid

Several state pass through funds from one or more of these funding sources, including Alaska, Arizona, Idaho, Minnesota, Oregon, and Washington

State evaluation of ICWA implementation performed in partnership with tribes. Data is continuously collected and analyzed to identify trends and areas for improve-ment

2009 Washington State Indian Child Welfare Case Review

State performance-based contracting requirements for use with private providers that require ICWA compli-ance, service provision in a culturally competent man-ner, and training of staff on these skill areas

Washington Department of Social and Health Services state performance-based contracting


continued

Promising Practices in Tribal-State CollaborationICWA has been a catalyst for many very positive and successful new policies and practices in child welfare with AI/AN children and families. These promising practices can be found in a number of states and local county jurisdictions, and are the product of partnerships between tribes, states, and counties, typically at the initiation of tribal governments. Tribal-state collaboration is reflected in state law, intergovernmental agreements, tribal-state forums, consultation policies, court procedures, and state agency policies or guidance. In some cases, the examples are unique to their jurisdiction, while others have been replicated in several states.

Tribal-State ICWA AgreementsTribal-state agreements are crafted collectively by the state and a tribe to clarify procedures for ICWA implementation and to coordinate responses to child welfare service inquiries for AI/AN children. To date about 20 states have such agree-ments with tribes.

These agreements improve ICWA compliance and outcomes for AI/AN children because they clarify jurisdictional issues, delineate roles and responsibilities, ensure the coordinated implementation of ICWA, and provide procedures for struc-tured conversations between the state and tribes when challenges arise.

According to Hicks (2005), positive outcomes for tribal-state agreements include:• Increased ability of states and tribes to provide culturally relevant services • More entitlement for tribes to administer their own programs and provide services to their citizens • Opportunities for tribes to exercise their sovereignty

The Washington tribal-state agreement is widely regarded as one of the best tribal-state agreements because it does a thorough job of detailing both tribal and state responsibilities throughout the child welfare process.

Tribal-State Children’s Services Advisory GroupsTribal-state children’s services advisory groups typically meet at least once quarterly and include tribal leaders, tribal social service workers, and state child welfare agency officials. These groups participate in and create trainings, address programmatic and policy challenges, design and implement new projects (such as service improvement projects), and discuss necessary ingredients for evaluating child welfare quality and data collection. These groups are a venue for formal ongoing collaboration and coordination activities that foster ICWA compliance and improve the well-being of AI/AN chil-dren and families.

The Alaska Tribal State Collaborative Group (TSCG) is one example of these groups. TSCG is a partnership that includes tribal members, tribal leaders, and representatives from different levels of the Alaska Office of Children’s Services. This group meets multiple times a year. Their focus is to foster collaboration that ensures ICWA compliance, reduce dispro-portionality, promote healthy racial and ethnic identity, and develop strong working relationships. More information on this group can be found at http://dhss.alaska.gov/ocs/Pages/icwa/tscg/tscg.aspx.

Tribal-State Dependency Court Advisory GroupsTribal-state dependency court advisory groups regularly bring together tribal judges, tribal court staff, state judges, and state court staff. During these meetings the collective group problem solves, shares information, and collaborates on sys-tems improvement that will lead to better outcomes for AI/AN children and families. These work groups improve outcomes for AI/AN children by:

• Streamlining jurisdictional transfers• Pinpointing issues that stand in the way of best court practices• Encouraging peer-to-peer collaboration• Building support for culturally competent practices

When tribal access to Court Improvement Program funding opened up in 2012, tribes and states gained access to the resources necessary to participate in these important collaborations.

Tribal-State Collaboration, continuedTribal-State Collaboration, continued


State Law and PolicyPromising Practice Example

State law defining government-to-government relationship with tribes and consultation process

Oregon Revised Statutes § 182.164 and 182.166

Government-to-government agreement be-tween a state and tribes establishing the principles and roles for implementing ICWA at the state level

Washington tribal-state exclusive and concurrent jurisdiction agreements, along with local area agreements. See www.dshs.wa.gov/ca/services/srvICWAgree.asp.

State law requiring state courts that are holding a child welfare hearing inquire as whether the child that is the subject of the hearing is an Indian child under the definition of ICWA. If the court knows or has reason to believe that the child is an Indian child, they will proceed accord-ing to ICWA’s requirements until such time the court knows that the child is not an Indian child under ICWA

Oregon Revised Statutes 419B 419B.878

State law definition of what information should be in a tribal notice of child welfare proceedings

Iowa Code §§ 232B.5(7)

State law requiring the district attorney or individuals facilitating voluntary placements of AI/AN children to notify the child’s tribe and birth parents or Indian custodians of voluntary pro-ceedings

Oklahoma Statute § 40.4

State law requiring the district attorney or individuals facilitating voluntary placements of AI/AN children to notify the child’s tribe and birth parents or Indian custodians of voluntary pro-ceedings

Oklahoma Statute § 40.4

State law recognizing culturally based perma-nent placement options of tribes, such as tribal customary adoption

California courts website description of the legislation and related mate-rials

Bench handbook for state courts providing a substantive and procedural overview of ICWA

California Bench Handbook: The Indian Child Welfare Act. See www.courts.ca.gov/documents/ ICWAHandbook.pdf

Guidelines for state agencies, courts, private service providers, and tribes on what constitutes active efforts under ICWA

Oregon Active Efforts, Principles and Expectations. See http://courts.oregon.gov/OJD/docs/OSCA/cpsd/citizenreview/ActiveEfforts PrinciplesandExpectations.pdf

State guidance on what constitutes a qualified expert witness under ICWA

See http://dcf.wisconsin.gov/memos/num_memos/DSP/2013/ 2013-05attach.pdf

Sharing ResourcesMany states find tribes to be an essential part of the child welfare system because of the help and relief they offer. Trib-al support includes providing culturally competent services and necessary out-of-home placements for tribal children (GAO, 2005). Tribes know the needs of their children and families best. When tribes are involved in the care and treatment of their children and families, the outcomes are better. This efficacy makes for overall long-term cost savings.

Unfortunately tribes often lack sufficient resources in the area of child welfare program-ming. Recognizing this need, many states share resources or distribute some of their federal funding to tribal child welfare programs. Resource allocation can come in the form of contracts, grants, or agreements. This may include general ICWA agreements or those specific to federal fund-ing streams such as Title IV-E or Title XX of the Social Security Act. When this occurs, tribal capacity to care for children and families improves, and tribal-state collaboration improves.

The most common form of resource sharing between tribes and states is via Title IV-E agreements. These agreements allow tribes to access federal funds reserved for foster care, guardianship, and adoption assistance programs. The AAIA recently completed its report A Survey and Analysis of Select Title IV-E Tribal-State Agreements including theTemplate of Promising Practices which is available at


continued


www.indian-affairs.org/programs/documents/FullTitleIV-EReport.pdf.

Truth and Reconciliation WorkNICWA—in partnership with the Child Welfare League of America, First Nations Repatriation Institute, and the First Nations Child and Family Caring Society of Canada—recently developed a Reconciliation in Child Welfare Initiative. The goal of this initiative is to “stop harmful practices that are still being perpetuated in state child-welfare systems and to pro-mote racial healing for Indian children, families, and communities who suffer from the historic trauma of losing their family relationships and identities as a consequence of past and present institutional racism within the child welfare system” (NICWA, 2011).

This is a promising practice model that develops trust and builds community between tribes and states through cultural values rather than mainstream values and imperatives. It is through this trust and community-building process that ICWA compliance and tribal-state relations improve. This process has been used to improve tribal state collaboration in Alaska, Michigan, Minnesota, and Washington.

Maine has also recently begun a child welfare reconciliation process. Maine has created a Truth and Reconciliation Commission that will listen, record, and process how the Maine child welfare system has treated AI/AN children and fam-ilies since the passage of ICWA. The process will involve listening sessions and ceremonial gatherings at each of the five Wabanaki communities in Maine. The purpose of the process is to give AI/AN people in Maine an opportunity to be heard, to start the healing process, and to seek suggestions on how the state child welfare system can work better with tribal children, families, and communities. At the end of the project the commission will issue a final report.

ConclusionLike other child welfare work, it takes strong partnerships to ensure that AI/AN children and families receive the protec-tions provided by the law and support to ensure good outcomes. The functioning of tribal and state relationships is a pri-mary determinant of how well ICWA is implemented in any given jurisdiction. Where tribal-state relations are positive and functioning well, tribes are viewed as possessing important resources needed to achieve ICWA compliance and positive outcomes for AI/AN children and families. Decisions regarding the placement of AI/AN children can be influenced by the level of cooperation between tribes and states (GAO, 2005). States depend upon tribes to help them effectively implement ICWA, and develop and strengthen sound practices that best serve Native children.

ReferencesHicks, S. (2005). “Tribal-state relationships: Implications for child welfare service delivery to American Indian/Alaska Native children and families.” In D.

S. Bigfoot, T. Crofoot, T. L. Cross, K. Fox, S. Hicks, L. Jones, & J. Trope (Eds.), Impacts of child maltreatment in Indian Country: Preserving the seventh generation through policies, programs, and funding streams (pp. 64-94). Portland, OR: National Indian Child Welfare

Association.

H.R. Rep. No. 95-1386, at 8 (1978).

National Indian Child Welfare Association (2011, Spring). “Results-focused reconciliation in child welfare: An action-oriented movement to achieve justice and reach community identified outcomes for Native children.” Pathways practice digest. Portland, OR: National Indian Child Welfare Associa-tion. Retrieved from: http://www.nicwa.org/pathways/documents/PathwaysSpring2011Edition_001.pdf

Summers, A., Woods, S., & Donovan, J. (2013). Technical assistance bulletin: Disproportionality rates for children of color in foster care. Reno, NV: National Council of Juvenile and Family Court Judges.

U.S. Government Accountability Office (GAO). (2005). Indian Child Welfare Act: Existing information on implementation issues could be used to target guidance and assistance to states. Washington, D.C.: Government Printing Office.

Portions of this article first appeared in Improving the Well-Being of American Indian and Alaska Native Children and Families Through State-Level Efforts to Improve Indian Child Welfare Act Compliance by David Simmons, published by the State Policy Advocacy and Reform Center in September 2014 and in the testimony of Terry Cross before the Attorney General’s Task Force on AI/AN Children Exposed to Violence in April 2014.


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