State Court Compliance with the Indian Child Welfare Act of 1978 and Its Impact on Placement

Background and Purpose: American Indian children are over-represented in foster care at a rate higher than any other race or ethnicity (Annie E Casey Foundation, 2014). The Indian Child Welfare Act (ICWA) of 1978 is a federal law passed to address the systematic removal of American Indian children from their communities, in efforts to preserve tribal culture and American Indian Families (Bussey & Lucero, 2013). However, no agency is charged with monitoring court or child welfare agency compliance with the law, and little information exists to demonstrate that the law is followed (Children’s Bureau, 2011). Because so little is known about whether the law is followed, it is also difficult to know whether the ICWA regulations related to encouraging tribal involvement in a case, placement preference, and use of Qualified Expert Witnesses at hearings lead to family preservation. Children who age out of stranger foster care have the poorest social outcomes so positive placement outcomes are vital. No large studies have linked compliance with child outcomes.

This paper reports on the first-ever statewide study of ICWA compliance. The aim was to assess court compliance with ICWA, and the extent to which compliance favorably impacts placement outcomes: return home to parents, placement with relative, or placement in the tribal community.

Methods: All cases in one state flagged as “ICWA eligible” were analyzed for compliance by the PI under contract with the State Supreme Court. Cases were coded to assess the dependent variable of favorable placement outcome. Independent variables included compliance with notice to tribe, findings of active efforts or culturally relevant services, relative searches, use of Qualified Expert Witness, and whether tribe intervened. One-tailed Pearson’s correlations were computed to assess relationships between the variables, with hypothesis that compliance factors would correlate with favorable placement outcomes. The analysis included descriptive statistics related to court compliance with ICWA.

Results: There was a correlation between placement outcomes and proper notice to tribe
(r=-.213, n=155, p=.004) and placement outcomes and tribes requesting intervener’s status (r=-260, n=158, p=.00).  There is not a correlation between placement outcomes and active efforts or culturally relevant services. The analysis indicates poor compliance with several ICWA requirements, including use of Qualified Expert Witness at removal (2% of cases, n=162) and termination (30%, n=193), Findings of Active Efforts (10%, n=184), Notice to tribe for hearings (45%, n=190). At time of dismissal, the most common outcome for children was to remain/return to parents (13%, n=163) followed by stranger care (11%).

Conclusions and Implications: Positive placement outcomes are associated with tribal involvement and notice. Active Efforts, culturally relevant services, use of QEW, or relative searches are not directly associated with positive placement outcomes. However, this may be explained by low use of QEW and lack of clear definition around the other variables.  There is no evidence in the literature that associates ICWA compliance and placement positive outcomes. Because children who remain in stranger foster care have the poorest of social outcomes, research is needed about how ICWA compliance contributes to healthy development of American Indian children.