An empirical examination of the Indian Child Welfare Act and its impact on cultural and familial preservation for American Indian children

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2004-12

An empirical examination of the Indian Child Welfare Act and its An empirical examination of the Indian Child Welfare Act and its

impact on cultural and familial preservation for American Indian impact on cultural and familial preservation for American Indian

children children

Gordon E. Limb

Brigham Young University - Provo

, [email protected]

Toni Chance

University of Maryland - Baltimore

Eddie F. Brown

Washington University in St. Louis

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Original Publication Citation Original Publication Citation

Limb, G., *Chance, T., & Brown, E. (2004). An empirical examination of the Indian Child Welfare

Act and its impact on cultural and familial preservation for American Indian children. Child

Abuse & Neglect, 28(12), 1279-1289.

BYU ScholarsArchive Citation BYU ScholarsArchive Citation

Limb, Gordon E.; Chance, Toni; and Brown, Eddie F., "An empirical examination of the Indian Child Welfare

Act and its impact on cultural and familial preservation for American Indian children" (2004).

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Child Abuse & Neglect 28 (2004) 1279–1289

An empirical examination of the Indian Child Welfare Act

and its impact on cultural and familial preservation for

American Indian children

夽

Gordon E. Limb

a,∗

, Toni Chance

, Eddie F. Brown

Department of Social Work, Arizona State University West, 4701 W. Thunderbird Road, Glendale,

AZ 85306, USA

University of Maryland, School of Social Work, 525 W. Redwood Street, Baltimore, MD, USA

Kathryn M. Buder Center for American Indian Studies, George Warren Brown School of Social Work,

Washington University, St. Louis, MO, USA

Received 18 June 2003; received in revised form 17 May 2004; accepted 23 June 2004

Abstract

Objective: Cultural and familial ties are crucial for the overall well-being of children. Extant research and per-

manency planning practices support the reuniﬁcation of children with their families when possible. In 1978, the

Indian Child Welfare Act (ICWA) was enacted to promote cultural and familial preservation for Indian children, but

sparse empirical research has examined the implementation and outcomes associated with this landmark legislation.

This article examines the relationship between compliance with ICWA in one Southwestern state and the rate of

reuniﬁcation of Indian children with family or tribal members following out-of-home placement.

Method: Public child protection records were reviewed for 49 ICWA-eligible children who were placed in alternate

care. Data were collected on compliance with placement type, use of qualiﬁed expert witnesses, and incorporation

of Indian culture and resources. Additionally, 78 state caseworkers and 16 tribal workers were surveyed regarding

knowledge and attitudes about three areas of compliance.

Results: Case record reviews indicated that the majority (83%) of Indian children were placed according to prefer-

ences outlined by ICWA. Almost all cases included a court ﬁnding that active efforts were applied to prevent family

breakup. While state workers reported limited understanding of many ICWA’s requirements, both state and tribal

workers reported a high level of state-tribal cooperation in working with Indian families and children.

夽

This study was funded by Casey Family Programs with support from the National Indian Child Welfare Association.

∗

Corresponding author.

doi:10.1016/j.chiabu.2004.06.012

1280 G.E. Limb et al. / Child Abuse & Neglect 28 (2004) 1279–1289

Conclusions: Resultsofthis study point to two major patterns of ﬁndings: (1) individualcase record reviews suggest

compliance with ICWA;and (2) differences exist in knowledge and perceptions of ICWA by state and tribal workers.

Furthermore, state child protection systems should follow the American Indian lead in further emphasizing cultural

and familial ties for children. Highlighting such ties acknowledges the importance of reuniﬁcation and cultural and

familial preservation to enable children to have a clear sense of tradition and belonging. Evidence indicates that

compliance with ICWA promotes better outcomes through reuniﬁcation.

Keywords: American Indian; Child welfare; Family preservation; Cultural preservation

Introduction

Inorder to understandand deﬁnetheneeds ofchildren in IndianCountry, theNational Indian Children’s

Alliance (NICA) was formed in 2000 through collaboration between Casey Family Programs and the

National Indian Child Welfare Association (NICWA). A major goal of NICA is to conduct ongoing

national research in the area of American Indian child welfare. Through a contract between Casey Family

Programs and the Buder Center for American Indian Studies at Washington University’s George Warren

Brown School of Social Work, this NICA funded study was undertaken to analyze state compliance with

the Indian Child Welfare Act and recommend needed improvements. Therefore, the purpose of this article

is to examine state compliance with the Indian Child Welfare Act (ICWA) to promote familialand cultural

preservation through culturally appropriate services to American Indian families and children. This was

accomplished through case record reviews and interviews with state and tribal child welfare workers.

Recent research in family and child welfare draws particular attention to the importance of cultural

and familial ties regarding the overall well-being of children in substitute care. Currently in the United

States, 556,000 children are placed in foster and/or pre-adoptive care (Children’s Bureau, 2002). The

reasons placements in substitute care are numerous, but children are primarily removed due to abuse

and/or neglect by those responsible for their care. Children of color are most at risk of remaining in

substitute care for extended periods (Roberts, 2002). Of particular concern are American Indian children,

who are still being removed at a disproportionate rate. The proportion of American Indian children in

foster care (2%; Children’s Bureau, 2002) is more than twice as large as that of American Indians in the

total population (.9%; Census Bureau, US Department of Commerce, 2002).

Despite the existence of federal policy targeted to reduce placements in substitute care, 10,994 Ameri-

can Indian children remain in foster and adoptive care (Children’s Bureau, 2002). On November 8, 1978,

Congress passed the Indian Child Welfare Act (ICWA) in response to the “rising concern ...over the

consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices

that resulted in the separation of large numbers of Indian children from their families and tribes through

adoption or foster care placement” (Mississippi Band of Choctaws v. Holyﬁeld, 1989). For the ﬁrst time

in US legislative history, ICWA, by limiting states’ powers over Indian children, established a legalframe-

work to support Indian families, speciﬁcally by maintaining Indian children with Indian caregivers in

order to honor tribal sovereignty and preserve cultural and familial ties. ICWA is important because it not

only clariﬁes jurisdictional authority, but it also mandates that “American Indian deﬁnitions of family be

used as guide for child welfare matters” (Red Horse et al., 2000, p. 18). Therefore, American Indians,

through passage of ICWA, began setting the stage for an updated orientation toward family preservation

G.E. Limb et al. / Child Abuse & Neglect 28 (2004) 1279–1289 1281

in national child welfare matters. Regarding passage of ICWA and the subsequent effect on child welfare

generally, Red Horse et al. (2000) suggest:

The functional elements of traditional Indian family systems, including their dependence on ex-

tended family, community networks, and cross-generational relationships, were being reassessed

by mainstream observers and gaining value as the “new” way to address family and community

issues. ...Thus, in an ironic twist of fate, as ICWA set the stage for a model of family preservation

for Indian children, it also paved the way for preservation legislation for non-Indian children (pp.

19–20).

Shortly after the passage of ICWA, Congress passed the Adoption Assistance and Child Welfare Act

(AACWA) in 1980, which required states to provide programs for prevention of foster care placement

and allotted funding for family preservation services. Following ICWA’s lead, AACWA instituted, for

the ﬁrst time in legislative history, a national program for family preservation (Red Horse, Martinez, &

Day, 2001). More recently, passage of the Family Preservation and Support Services Act (FPSSA) in

1993 authorized funding for states to develop programs for family preservation services and community-

based family support services (Denby, Curtis, & Alford, 1998). “In simplest terms, family preservation

philosophy emphasizes the inherent strengths of virtually all families...and gives priority to preserving

the permanence of children’s intimate relationships with familymembers when at all possible” (Courtney,

1997, p. 68).

Together, ICWA, AACWA, and FPSSA have promoted a major overhaul in the theoretical approach

to child welfare, emphasizing family support and preservation. Although these laws continue to be under

funded, they represent a conceptual shift in child welfare policy from deﬁcit models to focusing more

on strength-based models. Further, these legislative mandates have provided state child welfare systems

the opportunity “to shift from remedial and reactive systems of removal to systems that actually sup-

ported families and helped them learn skills and acquire resources in a solution-focused way” (Kelly &

Blythe, 2000, p. 31). For American Indians, this idea is nothing new because the relational dynamics

that characterize Native family systems have been traditionally reinforced by cultural norms. American

Indian children’s sense of belonging is rooted in an understanding of their place and responsibility within

the broader context of kinship networks. Therefore, the value of familial relationships to American In-

dians is that they emphasize “belonging” and are critical to an Indian child’s identity (Red Horse et al.,

2000).

While similar, two important distinctions should be made between ICWA and AACWA with respect

to efforts to prevent removal of a child from his or her family. First, ICWA requires states to make

“active efforts” to provide remedial services and rehabilitative programs while AACWA guidelines call

for “reasonable” efforts. Differentiating between active and reasonable efforts has been difﬁcult because

federal lawdoes not provide deﬁnitions or guidelines for states; therefore, states are expected to determine

the legal standard of proof that is necessary to demonstrate the appropriate effort. The second distinction

involves ICWA’s use of a qualiﬁed expert witness [ICWA 25 U.S.C.

§ 1912(e) & (f), 2000]. No such

provision is found in AACWA. ICWA states that the placement of an Indian child in substitute care or

the termination of parental rights of an Indian parent cannot occur unless supported by the testimony of

a qualiﬁed expert witness. Regarding who should serve as qualiﬁed expert witnesses, ICWA does not

specify, but the Bureau of Indian Affairs (BIA) Guidelines establish a rank order for expert witnesses and

suggest that such expert witnesses be “knowledgeable concerning the customs and cultures of the tribes

they serve” (Bureau of Indian Affairs, Department of the Interior, 1979, D.4).

1282 G.E. Limb et al. / Child Abuse & Neglect 28 (2004) 1279–1289

More recently, the federal government enacted the Adoption and Safe Families Act of 1997 (ASFA).

This legislation emphasized child safety for at-risk children and was aimed at reducing the time to

permanencyfor children in foster care. Like AACWA, ASFA made no direct reference to ICWA and, thus,

changed none of the requirements for implementing ICWA in state court custody proceedings involving

Indian children. However, Simmons and Trope (1999, p. 2) point out “ASFA did not speciﬁcally address

how its provisions would interface with the Indian Child Welfare Act, principles of tribal sovereignty,

jurisdictional or service delivery issues unique to Indian children.” This oversight presents challenges to

ensuring culturally competent practice with Indian families as mandated by ICWA within the framework

of ASFA mandates as required for non-Indian families.

While compliance to all of ICWA’s mandates are mandatory, failure on the part of the federal gov-

ernment to make ICWA compliance a funding issue until recent amendments to the Social Security Act

(speciﬁcally Title IV-B requiring state reporting on ICWA compliance) have made it difﬁcult to enforce

compliance. Additionally, lack of ongoing ICWA training, on behalf of states to their workers has been

problematic (see Brown, Limb, Chance, & Munoz, 2002). Further, Plantz, Hubbell, Barrett, and Dobrec

(1989) have suggested that six factors continue to deter or undermine the implementation of ICWA: (1)

state ignorance of or resistance to the requirements of the Act; (2) lack of experience within state agencies

in working with tribes; (3) high staff turnover; (4) lack of resources; (5) concern for tribal accountability

in providing services and caring for children; and (6) the absence of tribal courts to assume jurisdiction

over proceedings involving tribal members (p. 26).

Although ICWA has been lauded as one of the most signiﬁcant pieces of federal legislation affecting

American Indian families, research regarding state implementation of ICWA in practice has been limited.

Further, little is known about the ways in which state caseworkers apply ICWA’s mandates in an attempt

to reduce substitute care placements. Therefore, the purpose of this study is to examine state compliance

with ICWA, speciﬁcally relating to its impact on cultural and familial preservation for American Indian

children.

Method

This article is a component of a larger study (see Brown et al., 2002) that reviewed public child

protection records of American Indian children in state custody in one Southwestern state in the United

States. This larger study examined all of ICWA’s legal requirements and surveyed six participant groups

(statechildwelfarecase workers,tribalchildwelfareworkers,stateattorneys,tribalattorneys,statejudges,

and tribal judges) involved with and/or responsible for state ICWA compliance. For purposes of this

article, additional analyses (involving placement type, use of qualiﬁed expert witness, and incorporation

of Indian culture) of the public child protection records of American Indian children were conducted.

Further, quantitative and qualitative interviews with state and tribal child welfare workers are reported to

supplement the case record review.

Case record review

Measures. The research team developed a data collection instrument to be used for case record reviews.

Human subjects approval was sought and received from the Human Subjects Committee at Washington

Universityand the Casey Family Programs Human Subjects Review Committee. Analyses of case records

G.E. Limb et al. / Child Abuse & Neglect 28 (2004) 1279–1289 1283

have been organized into three major areas, which are required mandates under ICWA. First, placement

type—ICWA mandates foster care placement with (1) a member of a child’s extended family, (2) a foster

home licensed or approved by the Indian child’s tribe, (3) an Indian foster home licensed by a non-Indian

licensing authority, or (4) an institution approved by an Indian tribe or an institution operated by an Indian

organization which has a program suitable to meet the child’s needs (Indian Child Welfare Act of 1978,

2000).

Second, the use of qualiﬁed expert witnesses—Bureau of Indian Affairs, Department of Interior (1979)

rank orders witnesses in the following manner: (1) a member of the Indian child’s tribe who is recognized

by the tribal community as knowledgeable in tribal customs as they pertain to family organization and

child rearing practices, (2) a lay expert witness having substantial experience in the delivery of child

and family services to Indians, and extensive knowledge of prevailing social and cultural standards and

childrearing practices within the Indian child’s tribe, or (3) a professional person having substantial

education/experience in his/her specialty area (Bureau of Indian Affairs, Department of Interior, 1979,

D.4).

Finally, incorporation of Indian culture and resources—ICWA requires states to make “active efforts”

to provide remedial services and rehabilitative programs to prevent breakup of the family in all foster

care and termination of parental rights (TPR) proceedings. Although there is some debate surrounding

what active efforts actually involves, there is consensus that it involves a higher level of service than

“reasonable efforts.” In cases that involved removal of an Indian child, an additional question was asked

regarding “best practices” that solicited information as to whether “active efforts” were made to improve

the family’s circumstances so that the Indian child could be returned home.

The case record review instrument was pretested using a de-identiﬁed case record of an Indian child

in state custody. Thereafter, four national experts on ICWA, along with members of the tribal/state

workgroup, reviewed the instrument’s content and face validity. The instrument was revised following

their input. In order to improve inter-rater reliability among the different data collectors, a member of

the research team (who has extensive public child welfare experience and is familiar with the state’s

automated case management information system) examined each of the reviewer’s ﬁndings, prior to

completion, to check for inconsistencies and different interpretations. Where questions existed, another

member of the research team went back the original ﬁles, after the initial data collection, to do validity

checks on the selected variables.

Sample and procedures. Existing state case records were the primary source of data for the case reviews.

Supplementary data were abstracted from legal case ﬁles maintained by the Attorney general’s ofﬁce. As

of October 2001, there were 131 open cases involving American Indian children that met the selection

criteria. Stratiﬁed random sampling methods were used to select 61 child protection case records of

American Indian children in state custody statewide. The number of cases selected were based on three

criteria: (1) a desire to examine a similar number of cases that were selected for the ongoing Child and

Family Services Review conducted by the federal government, (2) to have a large enough sample size

to be representative and give enough statistical power to conduct advanced statistical tests, and (3) to

complete a review of a single case, it was estimated that it would take 4hours (allotted funding dollars

were set aside to allow the research team 1 week to collect this data).

Additional requirements were also used to select cases for the review: (1) the child must be identiﬁed

by the state as having American Indian or Alaska Native heritage/ancestry, (2) the case status must be

open as of 10/31/01, (3) the case is open for 6 months or longer as of 10/31/01, and (4) the child is in

1284 G.E. Limb et al. / Child Abuse & Neglect 28 (2004) 1279–1289

out-of-home placement by court order or a voluntary foster care placement agreement, or the child has

been returned home on an in-home dependency petition. In cases involving more than one Indian child in

a family, data were collected for ICWA compliance based on the oldest identiﬁed Indian child. Of the 61

cases, 49 met ICWA eligibility requirements. The 12 cases that were excluded were determined by their

potential tribe(s) to be ineligible for ICWA since they were not children of tribal members or eligible for

tribal membership.

State and tribal child welfare workers

Measures. In addition to the case record review instrument, the research team developed a second instru-

ment to collect information from state and tribal child welfare workers. The instrument incorporated a

mixture of ﬁve query types: dichotomous, continuous, multiple choice,qualitativeand 5-point Likert-type

scales (0= never; 1= occasionally; 2 = about half of the time; 3 = most of the time; and 4= all of the time).

Questions focused on state and tribal worker knowledge and perceptions of ICWA compliance and how

often certain ICWA-related events or provisions occurred. To examine and establish the accuracy of the

conclusions drawn, a pilot study was undertaken to determine both instruments’ validity and reliability.

Prior to data collection, four national experts on ICWA, along with members of the tribal/state work-

group, reviewed each of the instrument’s contents and design for clarity and tested the instruments for

face validity and reliability.

Bivariate analyses were also conducted on a number of survey respondent items to compare state and

tribal worker responses. For survey items generating percentages for participant responses, chi-square

tests were used to test differences between survey respondent groups and a p value of ≤.05 (two-tailed)

was used as the level of signiﬁcance. For survey items generating mean scores, t tests were used to

compare group means.

Sample and procedures. A stratiﬁed random sample among the state’s administrativedistricts of 100 state

child welfare caseworkers was selected from the population of workers employed by the state for at least 1

year. The 1-year employment criterion was established to increase the likelihood that a caseworker would

have had an American Indian child on his/her caseload. Paper surveys of the quantitative and qualitative

structured interview were distributed to state caseworkers who were asked to complete the surveys and

mail or fax them back to the research team. Follow-up telephone calls were made to workers who did not

initially return a completed survey. The response rate was 78%.

With regard to tribal child welfare workers, a snowball sampling strategy provided names of 17 tribal

workers or tribal administrators employed by their respective tribes and involved in Indian child welfare

matters. Paper surveys were faxed to tribal workers and follow-up telephone calls were made to those

who did not initially return a completed survey. The response rate was 94%.

Results

Data were examined in three major areas of ICWA compliance: placement type, use of qualiﬁed expert

witnesses, and incorporation of Indian culture and resources. Each of these areas is reported separately

for the case record review and state/tribal child welfare workers.

G.E. Limb et al. / Child Abuse & Neglect 28 (2004) 1279–1289 1285

Case record review

Placement type. Forty-eight of the 49 child protection case records reviewed (98%) involved

children who were placed in foster and/or pre-adoptive homes. Of these 48, 83% were placed

within the preferences outlined by ICWA. Among these children, 55% were placed with ex-

tended family members, 33% were in a placement established by resolution with the child’s tribe,

and 13% were placed in Indian foster homes licensed, approved, or speciﬁed by the child’s

tribe.

Qualiﬁed expert witnesses

ICWA requires that qualiﬁed expert witness testimony be used to support a ﬁnding of “clear and

convincing evidence that the continued custody of the child by the parent or Indian custodian is likely to

result in serious physical and emotional harm to the child” (Indian Child Welfare Act of 1978, 2000). This

occurred in 71% of the 48 cases involving foster care placement (see Table 1). These expert witnesses

included a member of the child’s tribe (56%), a professional person with substantial education and

experience in his area of specialty (26%), or some other person deemed by the court as a qualiﬁed expert

witness (18%).

Among the 19 cases involving involuntary termination of parental rights (TPR), 89% included qual-

iﬁed expert witness testimony to support the ﬁnding of “beyond a reasonable doubt that the con-

tinued custody of the child by the parent or Indian custodian is likely to result in serious physi-

cal and emotional harm to the child” (Indian Child Welfare Act of 1978, 2000). In these cases, the

expert witnesses included a member of the child’s tribe (59%), a professional person with substan-

tial education and experience in his/her area of specialty (29%), a lay expert with substantial experi-

ence in delivering child and family services to Indians and extensive knowledge of prevailing cultural

and child rearing traditions (18%), or some other person deemed by the court as a qualiﬁed expert

witness (18%).

Incorporation of Indian culture and resources

Forty-one (84%) case ﬁles included evidence, based on a court ruling, that the state child protec-

tion agency took into account the prevailing culture and tribal way of life. Of the 48 cases involv-

ing foster care placement, the court made a ﬁnding in 94% cases that the state demonstrated ac-

tive efforts to provide remedial and rehabilitative programs designed to prevent the breakup of the

family prior to removal and in 27 (56%) cases that the state applied active efforts to reunify the

family. To ensure active efforts in these foster care cases, the state used extended family members

(80%), the child’s tribe (93%), Indian social service agencies (39%), and individual Indian caregivers

(2%).

Similarly, the court found in 95% of the 19 cases involving involuntaryTPR that the state applied active

efforts prior to removal to provide remedial and rehabilitative programs designed to prevent breakup of

the family and in 12 (63%) cases that the state applied active efforts to reunify the family. To ensure active

efforts in these TPR cases, the state used extended family members (44%), the child’s tribe (78%), and

Indian social service agencies (28%).

1286 G.E. Limb et al. / Child Abuse & Neglect 28 (2004) 1279–1289

Table 1

State and tribal child welfare workers

State worker (n=78) Tribal worker (n=16)

¯x

(SD) Percent ¯x

(SD) Percent

Familiar with the preference for Indian caregivers in out-of-

home placement

68 –

Familiar with procedures for Indian caregivers to meet child

protection standards

50 –

State court uses qualiﬁed expert witness testimony 1.96 (1.53) 1.91 (1.56)

If the state has reason to believe that a child is Indian, the

state

3.62 (.69) –

Consults with extended family members

Contacts the tribe 3.75 (.47) –

Contacts Indian social service agencies 3.39 (1.00) –

Contacts the BIA 2.67 (1.56) –

State maintains regular contact with tribe regarding member-

ship of children in state custody

77 80

Tribe is invited to participate in stafﬁngs and case planning 3.30 (1.15) 2.67 (1.18)

How often the parent is invited to participate in developing

the case plan

3.78 (.42) 2.00 (1.22)

Familiar with the ICWA requirement for active efforts in

placements

55 –

State applies active efforts to prevent breakup of the Indian

family

77 75

To ensure active efforts, the state uses 3.43 (.76) –

Extended family

Child’s tribe 3.36 (.82) –

Indian social service agencies 3.21 (1.04) –

Individual Indian caregivers 2.44 (1.46) –

Active efforts are different from reasonable efforts 49 23

Where 0= never, 1= occasionally, 2 = about half of the time, 3 = most of the time, and 4 = all of the time.

Question not asked.

State and tribal child welfare workers

Placement type. Of state workers, 68% reported being familiar with the preference for Indian caregivers

whenplacing Indian childrenout-of-home (see Table1);50% also reportedbeing familiarwith procedures

for Indian caregivers to meet child protection standards.

Qualiﬁed expert witnesses. When asked how often the state uses a qualiﬁed expert witness when deter-

mining out-of-home placements of Indian children, state and tribal workers agreed that the state court

uses qualiﬁed expert witness testimony about half of the time (¯x = 1.96 and ¯x = 1.91, respectively; see

Table 1).

Incorporation of Indian culture and resources. If the state has reason to believe a child in state custody is

Indian, state and tribal workers reported that the state consults with extended family (¯x = 3.62) contact

G.E. Limb et al. / Child Abuse & Neglect 28 (2004) 1279–1289 1287

the tribe (¯x = 3.75), and contact Indian social service agencies (¯x = 3.39) most to all of the time, and

contacts the BIA about half to most of the time (¯x = 2.67, see Table 1). Most state (77%) and tribal (80%)

workers agreed that the state maintains regular contact with the tribe regarding tribal membership of

children in state custody. State workers reported that the tribe is invited to participate in stafﬁngs and case

planningmost toall ofthetime(¯x = 3.30),and tribalworkersreportedthat thetribe isinvitedto participate

about half to most of the time (¯x = 2.67). Compared to state workers, tribal workers reported that parents

were invited less often. This ﬁnding was statistically signiﬁcant (¯x = 3.78 and 2.00, respectively, p ≤ .01,

t =5.51).

About half (55%) of state workersreported being familiar with the ICWA requirement for active efforts

in placements. Three-fourths of both state (77%) and tribal workers (75%) reported that the state applies

active efforts to prevent breakup of the Indian family. To ensure active efforts, state workers reported that

the state uses extended family members (¯x = 3.43), the child’s tribe (¯x = 3.36), and Indian social service

agencies (¯x = 3.21) most to all of the time and that the state uses individual Indian caregivers about half

to most of the time (¯x = 2.44). While half (49%) of state workers reported that active efforts are different

from reasonable efforts, signiﬁcantly fewer tribal workers (23%, p≤ .001, χ

=7.70) believed that the

state applied a different standard for active efforts as compared to reasonable efforts. For example, a tribal

worker stated, “I don’t believe the state has any deﬁnition of active efforts at this time to delineate it from

reasonable efforts ...decision often seems subjective.”

Discussion

The purpose of this study was to build upon literature regarding the relationship between compliance

with ICWA and the rate of reuniﬁcation of Indian children with family or tribal members following out-

of-home placement. Results of this study point to two major patterns of ﬁndings. First, individual case

record reviews suggest compliance with ICWA. For example, ﬁndings on placement type showed the

majority of children in state custody were placed within the preferences outlined by ICWA, with more

than half being reuniﬁed with family members. Further, in almost 3 out of 4 foster care placements and

9 out of 10 involuntary TPR cases, qualiﬁed expert witness testimony was documented. In over half of

these cases, a member of the child’s tribe was called upon as a qualiﬁed expert witness.

The second major pattern of ﬁndings revealed that differences exist in knowledge and perceptions of

ICWA by state and tribal workers. Here, despite limited understanding among state workers of several

ICWA mandates, the state was overall compliant with most ICWA requirements and BIA Guidelines for

incorporating Indian culture and resources. For example, only one-fourth of tribal workers, compared to

halfof state workers,reported that the stateapplies a differentstandard foractiveversusreasonable efforts.

Therefore, there appears to be a discrepancy between efforts made by state workers and the perception

of those efforts by tribal workers.

One possible conclusion to this ﬁnding may be that compliance of workers, even though they may have

been unaware of ICWA mandates, may be a reﬂection of awareness among administrators who developed

agency policies based on ICWA mandates. Therefore, the workers, under the direction of supervisors and

following agency policy, may not have completely understood but still complied with ICWA mandates.

Concerning “best practices” variables, the state applied or demonstrated these less often. Most children

were placed within the preferences outlined by ICWA, largely within the extended family. Integrating

Indian traditions in service deliveryfor the families of Indian children who are in out-of-home placements

1288 G.E. Limb et al. / Child Abuse & Neglect 28 (2004) 1279–1289

is key to maintaining cultural and familial preservation. Finally, a limitation of this study was that the

case record review was not designed to assess whether the state was properly determining what types of

proceedings involve the application of ICWA. As a result, no attempt was made to conduct record reviews

of cases not identiﬁed by state personnel as potential ICWA cases.

As previously discussed, American Indian familial emphasis and the passage of ICWA have played

an important role in shaping family preservation services. To advance this effort, state child protection

systems should follow the American Indian lead in further emphasizing cultural and familial ties for

children. Highlighting such ties acknowledges the importance of reuniﬁcation and cultural and familial

preservation to enable children to have a clear sense of tradition and belonging. Evidence indicates that

compliance with ICWA promotes better outcomes through reuniﬁcation. With regard to social work

practice implications, in order to improve outcomes for Indian children, states should increase on-going

training for child welfare workers regarding all of ICWA’s mandates, increase emphasis on utilizing the

BIA Guidelines and “best practices” for implementing ICWA, and work collaboratively with tribes to

provide culturally competent active efforts.

Acknowledgements

The authors would like to thank the state child protection administrators, the state attorney general’s

ofﬁce, the American Indian organization representing most of the Tribes in the state, and the Tribal/State

ICWA workgroup for their assistance and support.

References

Brown, E., Limb, G., Chance, T., & Munoz, R. (2002). The Indian Child Welfare Act: An examination of state compliance.

Seattle: Casey Family Programs.

Bureau of Indian Affairs, Department of the Interior. (1979, November). Federal Register, Part III. Guidelines for state courts:

Indian child custody proceedings. 44 (228), 67584 et seq. Washington, DC: US Government Printing Ofﬁce.

Census Bureau, US Department of Commerce. (2002). The American Indian and Alaskan Native population 2000: Census 2000

Brief. Washington, DC: Author.

Children’s Bureau, US Department of Health and Human Services, Administration for Children and Families, Administration

on Children, Youth and Families. (2002). Adoption and Foster Care Analysis and Reporting System (AFCARS) data Report:

FY 2000. Retrieved October 10, 2002, from http://www.acf.hhs.gov/programs/cb/publications/afcars/report7.htm.

Courtney, M. (1997). Reconsidering family preservation: A review of putting families ﬁrst. Children and Youth Services Review,

19(1/2), 61–76.

Denby, R., Curtis, C., & Alford, K. (1998). Family preservation services and special populations: The invisible target. Families

in Society: The Journal of Contemporary Human Services, 79(1), 3–14.

Indian Child Welfare Act of 1978, 25 U.S.C.

§ 1901 et seq. (2000).

Kelly, S., & Blythe, B. (2000). Family preservation: A potential not yet realized. Child Welfare, 79(1), 29–42.

Mississippi Band of Choctaws v. Holyﬁeld, 490 U.S. 30, 104 L.Ed 2d 29 (1989).

Plantz, M., Hubbell, R., Barrett, B., & Dobrec, A. (1989). Indian child welfare: A status report. Children Today, 18(1), 24–29.

Red Horse, J., Martinez, C., & Day, P. (2001). Family preservation: A case study of Indian tribal practice. Seattle, WA: Casey

Family Programs.

Red Horse, J., Martinez, C., Day, P., Day, D., Poupart, J., & Scharnberg, D. (2000). Family preservation: Concepts in American

Indian communities. Seattle, WA: Casey Family Programs.

Roberts,D. (2002). Racial disproportionalityin the U.S.childwelfaresystem:Documentation, researchon causes, and promising

practices. Baltimore, MD: Annie E. Casey Foundation.

G.E. Limb et al. / Child Abuse & Neglect 28 (2004) 1279–1289 1289

Simmons, D., & Trope, J. (1999). P.L. 105–89. Adoption and Safe Families Act of 1997: Issues for tribes and states serving

Indian children. Portland, OR: National Indian Child Welfare Association.

esum

French-language abstract not available at time of publication.

Resumen

Objetivo: Los lazos culturales y familiares son cruciales para el bienestar general de los ni

nos. Las

investigaciones y las pr

acticas de planiﬁcaci

on en permanencia apoyan la reuniﬁcaci

on de los ni

nos con

sus familias, siempre que sea posible. En 1978, el “Indian Child Welfare Act (ICWA) fue promulgado

para promover la preservaci

on cultural y familiar en beneﬁcio de los ni

nos Indios, pero escasos estudios

emp

ıricos han examinadola implementaci

on y los resultados asociados con esta legislaci

on decisiva. Este

articulo examina la relaci

on entre aceptaci

on del ICWA en un estado del suroeste y la tasa de reuniﬁcaci

de los ni

nos Indios con sus familias o miembros de la tribu siguiendo la colocaci

on fuera del hogar.

etodo: Se revisaron los registros p

ublicos de protecci

on infantil de 49 ni

nos elegibles para el ICWA

quienes estaban colocados en cuidado sustituto. Se recogieron los datos sobre la aceptaci

on al tipo de

colocaci

on, uso de testigos caliﬁcados expertos, y la incorporacion de la cultura India y sus recursos.

Adicionalmente,78encargadosdecasos delestadoy16empleadostribalesfueronencuestadosenrelaci

a sus conocimientos y actitudes acerca de tres

areas de aceptaci

on.

Resultados: Las revisiones de los registros de casos indicaron que la mayor

ıa (85%) de los ni

nos Indios

fueron colocados de acuerdo a las preferencias estableciadaspor elICWA. Casitodos loscasos incluyeron

un halizgo de la corte en el sentido de que se aplicaron esfuerzos activos para prevenir el rompimiento de

la familia. A pesar de que los empleados del Estado reportaron conocimiento limitado de muchos de los

requerimientos del ICWA, tanto los empleados del Estado como los de la Tribu, reportaron un alto nivel

de cooperaci

on Estado-Tribu en su trabajo con ni

nos y familias Ind

ıgenas.

Conclusiones: Los resultados de este estudio se

nalan dos patrones importantes on los hallazgos: (1) La

revisi

on del registro de casos individuales sugiere aceptaci

on del ICWA; y (2) existen diferencias en

el econocimiento y percepciones del ICWA entre los empleados del Estado y de la Tribu. Adem

as, los

sistemas estatales de protecci

on infantil deben seguir el liderazgo del Indio Americano en enfatizar m

aun los lazos culturales y familiares de los ni

nos. Destacar estos lazos reconoce la importancia de la

reuniﬁcaci

on y de la preservaci

on cultural y familiar para permitirle a los ni

nos tener un claro sentido de

tradici

on y de pertenencia. La evidencia indica que la aceptaci

on del ICWA promueve mejores resultados

a trav

es de la reuniﬁcaci

on.