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GAO calls for better state data in ICWA cases
Friday, April 8, 2005

The General Accountability Office released its long-awaited study on the implementation of the Indian Child Welfare Act (ICWA) this week, calling for greater oversight to ensure states are complying with the landmark law.

More than two years in the making, the study was requested by House Majority Leader Tom Delay (R-Texas) and two Republicans, including one with jurisdiction over child welfare programs. The lawmakers wanted to know whether the law works as intended -- to give tribes a greater role in decisions affecting the placement of Indian children.

But due to the nature of the request -- DeLay was concerned that ICWA was hindering state courts -- tribal advocates feared the study could negatively impact Indian Country. The National Congress of American Indians and the National Indian Child Welfare Association held sessions to discuss the pending study and encourage tribal input.

The effort prompted GAO investigators to consult directly with tribes in five states and to take comments from more than 160 tribes and tribal organizations nationwide. The result is a 90-page study that calls for the federal government to seek better information -- from the states -- to ensure Indian children are being protected.

"ICWA created important protections to prevent state child welfare agencies and courts from inappropriately separating American Indian children from their families," the GAO wrote. "More than 25 years after it was enacted, however, we know very little about the effect of this law on moving American Indian children in foster care to permanent homes in a timely manner, while ensuring their safety and well-being."

The "scarcity of data" makes it difficult to draw concrete conclusions about ICWA, the report said. Discussion with tribal officials and a review of limited information from state agencies indicated some compliance problems, such as the identification of children who may be subject to the law, the GAO noted.

But to find out for sure, the GAO recommends the Department of Health and Human Services take a more active role. The Administration for Children and Families should review information received from states and "require states to discuss in their annual progress reports any significant ICWA issues" in order to help states with the law, the report concluded.

However, HHS didn't agree with the proposal. "ACF does not have the authority, resources or expertise to provide the level of effort to address the recommendations GAO identified," the department said in a March 21 letter. HHS called on GAO to assess tribal child welfare programs before moving forward.

"While HHS does not have specific oversight authority with respect to ICWA, it is responsible for ensuring that states provide meaningful information about their ICWA compliance efforts," the GAO countered.

The Interior Department responded with only a brief letter "The Bureau [of Indian Affairs] has no oversight authority for a state's implementation of the act," P. Lynn Scarlett, Interior's assistant secretary for policy, management and budget wrote on March 22.

Due to the limited information collected by states, the GAO was only able to look at ICWA implementation in Oklahoma, Oregon, Rhode Island, South Dakota, and Washington. These five were the only states that could identify children who came under the law in fiscal year 2003.

Based on the data, the GAO there was no way to determine, on a consistent basis, whether children subject to ICWA were treated any differently than those who weren't. The experience varied from state to state.

According to the GAO, "children exiting foster care who were subject to ICWA in two states (Oklahoma and South Dakota) stayed in foster care for about the same period of time as Caucasian and other minority children."

"In Washington, however, children subject to ICWA were less likely to leave foster care within 2 years compared to Caucasian and other minority children, while in Oregon children subject to ICWA and other minority children were somewhat more likely to do so compared to Caucasian children," the report noted.

Indian advocates have long complained that states aren't properly implementing the law. In response, the state of Iowa recently adopted a plan to ensure Indian children are placed with Indian families. Statewide, Indian children are 0.4 percent of the population but 2.1 percent of children in foster care.

Officials in Alaska, on the other hand, are trying to limit tribal control in child welfare cases. In November, the state's former attorney general issued an opinion that placed state law above ICWA and set out standards that limited the role of tribal courts.

In South Dakota, tribal leaders demanded tougher laws to ensure state compliance although a proposed bill was whittled down to a study. However, the Legislature recently approved a bill to provide better notification to tribes and Indian families.

General Accountability Office Report:
Highlights | Full Report | Abstract

Relevant Laws:
Indian Child Welfare Act (U.S. Code)

Relevant Links:
National Indian Child Welfare Association - http://www.nicwa.org
Indian Child Welfare Act Commission, South Dakota - http://www.sdtribalrelations.com/icwa.asp
Indian Child Welfare Act Resources - http://www.tribal-institute.org/lists/icwa.htm