Abstract
Native American children in the United States have been adopted by non-Indian families at rates that threaten the preservation of their Indian history, traditions, and culture. The Indian Child Welfare Act (ICWA), which established restrictive parameters that govern the placement of Native American children into foster care and adoptive homes, was ratified in an effort to keep American Indian families intact. This article addresses matters of importance to psychiatrists who conduct custody evaluations of Native American children and families. A summary of events that preceded enactment of the ICWA is given, along with guidelines for forensic psychiatrists who conduct foster and adoptive care evaluations of Native American children. We use clinical vignettes to illustrate how the ICWA informs the custody evaluation process as well as approaches to cultural concerns, including biases that forensic evaluators may encounter during these evaluations.
Transracial adoption can evoke strong emotions in society. Some professional organizations, such as the National Association of Black Social Workers, have historically argued strongly against the placement of African American Children with Caucasian caretakers.1–3 Others contend that children will be well-adjusted if their caretakers are cognizant of cultural differences and provide opportunities for adoptive children to learn about their cultural histories and traditions in a supportive, nurturing environment.4,5 Although much has been written about placement of children in foster and adoptive homes with caretakers of different racial and ethnic groups, there are limited resources that address matters of importance to forensic psychiatrists who conduct custody evaluations of Native American children in the United States.6,7 These youths, who live in cities and on reservations in every state and Washington, D.C., are afforded federally legislated protections during foster care and adoption proceedings. This article examines the history of the custodial debate involving Native American children in the United States, including the Indian Child Welfare Act,8,9 and the role of forensic psychiatrists who conduct foster care and adoption evaluations of American Indian children in U.S. courts. The terms Native American, Indian, and American Indian are used interchangeably in this article.
History of Native American Adoption
Native American children are born into a matriarchal society that is part of a familial network that includes the child's tribal clan.10,11 Informal adoption, the placement of children in the care of one's relatives, has long been a customary practice in tribal communities, which maintain American Indian traditions, language, religion, and culture.1 Termination of parental rights has never been a part of tribal culture.
American Indian tribes have been historically recognized as sovereign nations12 with their own tribal governments and laws, although some smaller tribes have arranged with the federal government to assume governance over the tribal communities.13
European migration to the United States had a destabilizing effect on the American Indian family and tribal system by the late 19th century. At that time, the United States Bureau of Indian Affairs implemented a system of “forced” American acculturation that required children to be placed in boarding schools, where they were separated from their parents and tribal communities, discouraged from embracing their cultural and religious heritage, and forcibly taught English.14–17
The federal government discouraged informal adoptions of Indian children by members of their tribes. Instead, Native American children, whose biological parents were unwilling or unable to care for them, became wards of the U.S. government. Native American families who had had challenging experiences with the U.S. government did not apply to become foster and adoptive parents in sufficient numbers to meet the need. Non-Indian case workers, who were employed by the U.S. government and who were not familiar with Indian culture and child-rearing traditions, often removed Indian children from their extended families when the biological parents had not maintained contact with the child for an extended period (Ref. 9, pp 2–4). Case workers’ cultural biases, too, may have reduced the number of approved Indian foster and adoptive homes that were available to Indian children (Ref. 9, pp 2–4). Consequently, many Indian children in developmentally and culturally stable situations were removed from their Indian extended family homes and placed in adoptive and foster homes with non-Indian caretakers.
The practice of separating Native American children from their families and tribal networks had a devastating impact on Indian culture. Many Indian children were being raised without a sense of their traditions and history because they were abruptly separated from Indian adults with whom the children had formed stable attachments. Indian caretakers were denied opportunities to foster each displaced child's cultural and spiritual development and identity.
Native Americans who resisted the government's actions encountered numerous barriers. Many Indian families whose children were displaced depended on federal or state benefits, including welfare, for survival; for these families, challenging the government was ill advised (Ref. 9, pp 2–4). The language barrier presented a substantial obstacle for Indians who did not speak English and who were not provided language interpreters or legal advocates to help them communicate effectively with government agents (Ref. 9, pp 2–4). Also, Indian families were not afforded due process before losing custody of their children (Ref. 9, pp 2–4).
A reduction in Native American informal adoption proceedings resulted in a large number of Indian youths who needed government-approved caretakers. In 1958, the Bureau of Indian Affairs and the Child Welfare League of America introduced the Indian Adoption Project (1958–1967), which assigned most Native American children to transracial foster care families and adoptive parents.18,19
Leaders of Native American communities, concerned that the Indian Adoption Project was diluting Indian culture and destroying Indian families, asked the Association on American Indian Affairs (AAIA) to study the problem.18,19 The findings were alarming: in some states, 25 to 35 percent of American Indian children were not living with their biological families. In South Dakota, Montana, and Washington State, Native American children were, respectively, 16, 13, and 10 times more likely to be placed in foster care than their non-Indian peers (Ref. 9, pp 2–4). In Montana, Indian children were 19 times (Ref. 9, pp 2–4) and in South Dakota 22 times19 more likely than non-Indian children to be adopted. The AAIA also determined that many of the displacements were predicated on allegations of emotional abuse (Ref. 9, pp 2–4). Physical abuse was not commonly a justification for separating these children from their families (Ref. 9, pp 2–4). The AAIA concluded that state child welfare agents who lacked understanding of American Indian culture and child-rearing customs contributed substantially to the separation of Indian children from their families of origin (Ref. 9, pp 2–4).
Disproportionate placement of American Indian children in foster and adoptive homes had devastating effects on the normal development of the children as well as on their families of origin. The lessening of the role of Native American families in American society threatened the survival of tribal history, culture, and autonomy, as well as the cultural identity of Indian children. Government-arranged adoptions severed attachments of Native American children to their families and tribes. Indian children who were adopted by non-Indian families were often isolated from Indian families, tradition, and culture. Indian families from whom children were forcibly removed by the government had to redefine their roles as caretakers and members of the tribal community.20 Depression, hopelessness, and suicide became more prevalent in this population.21,22
In 1978, the U.S. Congress responded to a public outcry regarding the gradual extinction of Indian culture by ratifying the Indian Child Welfare Act (ICWA), which required states and private agencies to be sensitive to the cultural attachment needs and traditional child-rearing practices of Native American children, families, and tribes when removing a Native American child from his or her Native American caretakers.
Cases Covered by the ICWA
The ICWA, which requires that minimum federal standards be met before an American Indian child can be placed with a non-Indian family, covers four types of custodial proceedings: foster care placement, termination of parental rights, preadoptive placement, and adoptive placement (Ref. 9, pp 27–29). The Act also covers any judicial proceeding in which termination of parental rights is a possible disposition.23 The Act excludes juvenile delinquency proceedings and custody disputes involving biological parents of Native American children, unless the case also involves one of the custodial proceedings that is covered by the ICWA.
Who Is Covered
The ICWA covers Indian children and Indian parents. An Indian child is an unmarried minor who is a member of a recognized Indian tribe or who is eligible for membership in an Indian tribe.24 The ICWA does not apply to children of members of Canadian tribes, even if those tribes have an established relationship with tribes in the United States.
An Indian parent, as defined by the ICWA, is the biological parent of an Indian child, or an Indian who has legally adopted an Indian child.24 An Indian father who has not legally established paternity or has not acknowledged the child (in writing or orally) is not considered an Indian parent for ICWA purposes.24 Indian parents are guaranteed a right to counsel for proceedings that are covered by the ICWA.25
The ICWA in Action
When an Indian child is the subject of a state court hearing that is covered by the ICWA, all parties, including courtroom personnel, are obligated to alert the court to the youth's status as an Indian child; the court must notify the child's tribe, the Indian parent, and, if applicable, the Indian custodian.25 The ICWA defers to a tribe's right to determine its own membership.
American Indian tribes that have established active tribal courts have jurisdiction over all foster care and adoption proceedings involving Indian children who reside on the reservation and children who are wards of the tribal court, unless the tribal court declines transfer of the case to their jurisdiction or a parent successfully appeals the decision to transfer the case to tribal court.26
Standards of Proof
Preservation of American Indian culture and traditions is critical to the history of the United States. Therefore, the ICWA set the standard of proof at “clear and convincing evidence” for placing a Native American in a foster home, which is higher than the minimum standard, “a preponderance of the evidence,” for placing non-Indian children.25 A petitioner seeking to remove a Native American child involuntarily from his home must show with the support of testimony from a “qualified expert witness” that the child would suffer “serious emotional or physical harm” if he remains in the home with the caretaker.25 The petitioner must also show, before the hearing, that “active efforts have been made to provide remedial and rehabilitative programs” to the family in an effort to preserve the family unit and that these interventions have failed.25 Active efforts are not required in extreme circumstances, such as when a parent has abandoned, tortured, or sexually abused a child or committed murder.27 An adversarial hearing is not required if an Indian parent voluntarily permits placement of the child or consents to voluntary termination of parental rights.28 However, a formal hearing must occur to assure the court that the parent's decision has not been coerced.28
The ICWA stresses the importance of preserving the American Indian family. The Act sets a high bar for terminating parental rights of Indian families. A petitioner seeking termination of parental rights of an Indian parent must convince the court with evidence, including expert testimony, beyond a reasonable doubt that despite efforts to rehabilitate the family unit, continued placement of the Indian child with the Indian parent or custodian is likely to “result in serious emotional or physical damage to the child.”29 This standard is higher than the standard of clear and convincing evidence for cases involving termination of parental rights for non-Indian children in the United States.30
When a tribal court has jurisdiction over the placement of an Indian child, the corresponding state court can formally inquire as to whether the tribal court's actions and decision-making comport with federal law and tribal law governance. Tribal courts should be prepared to produce evidence in the form of documentation or other interventions to assert governance over an Indian child.26
The goal of the ICWA is to ensure that reasonable efforts will be made to assign Native American children who are removed from their homes to placements that reflect their cultural heritage and traditions. Several components of the ICWA are relevant to forensic psychiatric practice.
Serving as an Expert Witness
Cultural sensitivity is an important component of objectivity in all forensic mental health evaluations, including assessments of American Indian children and their families.31 Griffith32 has described the challenges encountered by psychiatrists who seek to conduct ethics assessments, particularly when they are confronted with cultural differences. He correctly suggests that a forensic psychiatrist should strive to be sensitive to cultural concerns as well as one's own cultural biases; these practices enhance the objectivity of the evaluation.
Native American people have diverse cultures, traditions, and customs that may not be consistent with the cultural backgrounds or training of many mental health professionals. Yet, the ICWA requires the forensic expert to be familiar with “prevailing social and cultural standards and child-rearing practices within the Indian child's tribe.”33 The mental health expert should consult with experts in the religion, education, health care, and other salient customs of the child's identified tribe34; this information should be incorporated into the decision-making process and should be explained to the court. The following theoretical case examples illustrate these concepts.
Case Example 1
Thomas is a three-year-old Native American child who lives on a reservation with his parents. He suffers from a treatable but potentially fatal medical illness. His parents have declined evidence-based medical care for Thomas. The court appoints Dr. Dan as a mental health expert because the local social service agency wants to place Thomas in a foster home.
Dr. Dan interviews Thomas’ parents, who are aware of the recommended medical treatment, including the risks and benefits, and understand the consequences of declining the care recommended for their child. The parents tell him that they have opted to refuse the treatment. They assure him that they have made their decision freely and have not been coerced by anyone. They have entrusted a spiritual leader in their community with healing Thomas. The parents understand that if spiritual treatment fails, Thomas may not have sufficient time to respond to recommended medical treatment. He is likely to die.
Before Dr. Dan renders an opinion, he must ensure that he has made a reasonable effort to understand the cultural basis for Thomas's family's decision. He interviews tribal leaders, who confirm that it is customary to use a traditional healer to treat Thomas’ particular illness. Tribal leaders interview Thomas’ parents, who seem to understand their options. They insist on using a traditional healer. The tribal leaders inform the doctor of the family's choice, which seems to be well-reasoned in terms of Native American tradition.
Although Dr. Dan may not agree with the parents’ choice, he is obligated to explain to the court that the parents’ knowingly and voluntarily have opted to decline the recommended medical care for Thomas. They understand the potential consequences of their decision and have the capacity to decline treatment for their son. Dr. Dan should also inform the court that the parents’ decision to consult a traditional healer to care for Thomas's illness is a decision that is considered an acceptable choice in their tribal community.
Case Example 2
Sara, a 12-year-old Indian girl, attends school a few miles from the reservation where she and her family live. She has a history of defiance, fighting in school, poor concentration, and frequent school suspensions. One day, Sara and Dave, a non-Indian peer, decide to place a chemical in a teacher's beverage as a prank. The teacher ingests the beverage, becomes ill and is transported by ambulance to a hospital, where she remains for two days. State police interview the children who admit to their actions.
Sara and Dave are taken to a county juvenile detention center. Sara is released to tribal authorities, who detain her in the tribal jail for 24 hours. She is then permitted to return to school. Dave remains in the detention center pending an adjudication hearing for attempted murder. School officials contact social services because they do not believe Sara's parents or the tribal court have responded appropriately to Sara's behavior. The social services agency contacts Dr. Marcus to determine whether they should offer any intervention before they petition for a foster home placement for Sara.
Dr. Marcus knows that the ICWA requires the social service agency to offer remedial and rehabilitative assistance to the family to promote family preservation before the agency can petition for foster care placement.
Sara and her mother are interviewed by Dr. Marcus. They tell him that Sara's father's recent contact with her has been intermittent because “he lives with his other family.”
After Sara's father returned from military duty, he began to drink heavily. He hit Sara and her mother when he was intoxicated. At times, the mother sought emergency medical attention for her injuries. The father began to spend extended unexplained periods away from home, and Sara learned about her father's affair from a classmate who is related to members of “the other family.”
Sara's mother admits that she has had difficulty containing Sara and her adolescent brother, who have been angry and defiant since their father moved away. Sara's grades, concentration, and appetite have declined. The mother says she and Sara have had nightmares and flashbacks that are related to the domestic violence. Sara no longer trusts others and shuns her married relatives. She does not expect to graduate from high school or to have a career. She has been feeling tired and unmotivated.
Sara tells Dr. Marcus that she agreed to drug her teacher because, “I wanted her to stop yelling at me and blaming me for everything. She's just like my dad.” Sara volunteers that although she initially wanted her teacher to die, she really wants her own pain to go away. “I don't want to hurt and I want my mom to stop hurting so much.” The family has few social supports; they relocated to their current community after Sara's maternal grandparents died, about three years ago.
Dr. Marcus decides that Sara meets diagnostic criteria for major depressive disorder and post-traumatic stress disorder. He is able to recommend culturally sensitive family supportive services, including domestic violence counseling, a support group for family members of veterans with addictive disorders, and mental health services for Sara and her mother. The local mental health center has American Indian counselors and consultants from Sara's tribe who help non-Indian mental health providers understand the nuances of Indian culture, values, traditions, and child-rearing practices. Dr. Marcus also recommends a mental health evaluation for Sara's brother.
Case Example 3
Roy is an eight-year-old Indian boy who has been repeatedly hospitalized due to acute exacerbations of asthma. The physicians have been unable to wean him from steroids. Whenever he is brought to the emergency room, he smells of cigarette smoke. Despite the evidence, the family adamantly insists that nobody smokes tobacco in the home. A state child protective services representative visits the home to make an assessment of conditions for the child. The faint odor of burned tobacco permeates the home. In the interest of the child's physical well-being, the local social service agency petitions the state court for foster care placement for Roy. The tribal court is notified and permits the state court to adjudicate the case in accordance with the provisions of the ICWA.
Dr. Kara, a child forensic psychiatrist, agrees to conduct an evaluation to determine suitability of Roy's home for his development; this assessment will include a determination of Roy's family's capacity to understand and comply with the medical recommendations. She is familiar with some Native American customs but has never evaluated a family from Tribe X. She identifies someone on the Tribe X reservation with whom she can consult about tribal customs, if needed.
Dr. Kara, who is familiar with the provisions of ICWA, knows that the foster care agency must convince the court that active efforts have been made to offer remedial and rehabilitative plans to the family in an effort to preserve the family unit. The social services agent tells her that this requirement has been satisfied by several health care and social workers, who advised the family to stop smoking cigarettes in the home, and who referred the parents to a physician who specializes in smoking cessation interventions.
The ICWA states that “Before a court can order foster care placement of an Indian child, the court must be persuaded by clear and convincing evidence that continued custody by the parent or Indian custodian will result in serious emotional or physical damage to the child.” Although, theoretically speaking, steroid-dependent asthma may be sufficient to meet this requirement, Dr. Kara has been asked to evaluate the family to determine if they have the capacity to understand and comply with the medical recommendations. The psychiatrist must also determine how cultural traditions may be influencing the parents’ actions.
Both parents tell Dr. Kara that they do not smoke and they do not allow others to smoke tobacco in their home. They work hard to provide a supportive safe environment for their child. They want him to be healthy and happy. They also are concerned about his breathing problems. Neither parent works with or socializes with people who smoke cigarettes. The family history is significant for some of Roy's maternal relatives dying of cancer. His mother says she does not know the type of cancer the men had, “but doctors said it [the disease] started in their lungs.” When asked whether these relatives smoked cigarettes, his parents say no.
Dr. Kara needs to learn more about the deceased relatives and so she asks about their work and recreation histories. Each man was a part-time tribal medicine man and used tobacco in spiritual ceremonies several times daily. When the psychiatrist asked if Roy spends time with any medicine men, the parents say that his maternal grandfather, who cares for him when they are at work, is a medicine man. The grandfather sometimes conducts spiritual ceremonies in Roy's house when Roy is too ill to leave home.
The psychiatrist explains the situation to the social services representative, who helps Roy's parents find another member of their tribal community to care for him when his grandfather has to perform ceremonial rituals. Roy's grandfather bathes before he visits Roy, and stops performing spiritual ceremonies in Roy's home. Roy's health improves and the family is not subjected to a foster care hearing.
Discussion
The ICWA contains safeguards designed to preserve Indian families, culture, traditions, and history for future generations. This article offers the reader a brief insight into the Act, but does not describe how the Act has been interpreted by U.S. courts. Although the Act has enhanced preservation of Indian culture, its mission has been far from successful. Foster care placement of Native American children in the United States still is higher than that of non-Indian children. The placement of Indian children with non-Indian families continues to have an adverse effect on the continuity of Indian culture and tradition.
Psychiatrists seeking to provide effective expert consultation in ICWA cases should strive to enhance their objectivity by acknowledging their biases about Native American culture and traditions.34 Examiners should be cognizant of the cultural differences among tribes. They should be willing to seek tribe-specific guidance from experts in Native American traditions and child-rearing practices regarding the roles of the extended family and community and of tribal hierarchies and traditions. They should be able to differentiate between culture-bound experiences and mental illness; understand the significance of spiritual rituals, including those involving tobacco and sweat lodges; and become familiar with community-based services designed to enhance the preservation of American Indian families.
Footnotes
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Disclosures of financial or other potential conflicts of interest: None.
- American Academy of Psychiatry and the Law
