Measuring Compliance with ICWA

Here is a Casey Family Programs publication, “Measuring Compliance with the Indian Child Welfare Act”

At present, no federal agency is tasked with ensuring state compliance with the protections mandated by ICWA. Without federal oversight, state legislatures, public child welfare authorities and courts are left to interpret ICWA provisions and definitions of “active efforts.”22, 23 Despite overall decreases in rates of out-of-home placements, Indian children remain disproportionately represented in the foster care system, at more than twice the rate of the general population,24 though this varies among states.25

Related, here is a copy of the law professors comments to the original AFCARS proposed rule on collecting data.

There is no statistical data required on Indian children from State or Tribal child and family care agencies. There is also no data on State compliance with ICWA. Under § 429(c), the ACF already possess and exercises the requisite authority to collect ICWA data. 42 U.S.C. 479(c)(3)(A)-(D).
The AFCARS regulations should follow the same requirements for Title IV-B Agencies in ICWA data reporting, as seen in the  PIs released by HHS. [ACYF-CB-PI-14-03 (2014)]. HHS has defined “Title IV-E Agency” “as the State or Tribal agency administering or supervising the administration of the title IV-B and title IV-E plans.” 77 F.R. 896. Under this definition, Title IV-B Agencies may also be Title IV-E Agencies. Due to this, ACF should also include similar ICWA data requirements in AFCARS.

In addition, the SSA also requires AFCARS to “provide comprehensive national information” regarding “the extent and nature of assistance provided by Federal, State, and local adoption and foster care programs and the characteristics of the children with respect to whom such assistance is provided.” 42 U.S.C. 479(c)(3)(d). Not only does this encompass Title IV-B Agencies, but also Title IV-E Agencies, which HHS provides direct Title IV-E funding to Tribes and Tribal child and family service programs under the Fostering Connections to Success and Increasing Adoption Act of 2008. The American Indian / Alaska Native children in these Title IV-B or Title IV-E Agencies are ICWA children, and that data should also be collected in order to “ensure that the [AFCARS] system functions reliably throughout the United States.” 42 U.S.C. 479(c)(4).
Under this legal and policy background, and as recommended by HHS, we recommend ACF add the following data elements and questions to the AFCARS in order to comply with ICWA.

Kate Fort on Observing ICWA Cases in State Courts

Our own Kate Fort has posted her paper, “Observing Change: The Indian Child Welfare Act and State Courts,” published in the New York State Bar Association Family Law Review earlier this year. It is available on SSRN.

Here is her abstract:

ICWA is one of the foundational laws of federal Indian law, but it usually arises in the broader public consciousness when there is a voluntary adoption subject to the law. Recently, the law was subject to Supreme Court review in Adoptive Couple v. Baby Girl. A heart-wrenching case, but ICWA is far more regularly applied in abuse and neglect cases. Any involuntary removal of an American Indian child, as defined by the Act, requires the application of ICWA. While cases of voluntary adoptions designed to thwart the requirements of ICWA require constant vigilance from states and tribes, the law provides broader protections for those families in the state child welfare system.

This article posits one way to both collect data about abuse and neglect compliance within the framework of ICWA, and increase that compliance through collaborative change to the systems. QUICWA, a project by the Minneapolis American Indian Center, consists of a group of interested stakeholders who have created a checklist to measure what happens in each individual hearing where the court must apply ICWA. While other groups, such as the National Council of Juvenile and Family Court Judges, use a different checklist format, the goal of the projects are similar — to find ways to increase compliance with ICWA. Funded in collaboration with Casey Family Programs, law schools and social work programs in key states have started observing ICWA hearings using the QUICWA checklist. In Michigan, the Michigan State University College of Law has observed ICWA hearings in three counties, using law students as observers. Though family law is driven by narrative, collecting data is vital to identify patterns surrounding fairness and due process in the individual stories.