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Government Accounting Office

Report to Congressional Requesters

Indian Child Welfare Act

Contents as listed in actual report:

• Results in Brief 3
• Background 6
• Time Needed to Determine a Child’s ICWA Status, Availability of
  American Indian Foster and Adoptive Homes, and Cooperation
  between Tribes and States Influence Placement Decisions for
  Children Subject to ICWA 16
• Limited Data Show No Consistent Differences in Length of Stay or
  Other Foster Care Experiences for Children Subject to ICWA
  and Other Children 33
• ACF Obtains Limited Information on ICWA Implementation
  through Its Oversight of States’ Child Welfare Systems 46
• Conclusions 58
• Recommendation for Executive Action 59
• Agency Comments and Our Evaluation 59

To view the full product, including the scope and methodology, go to

www.gao.gov/cgi-bin/getrpt?GAO-05-290.

For more information, contact Cornelia Ashby at (202) 512-8403 or ashbyc@gao.gov.

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Contents of this website page:

• Obtain a copy of the report
• What GAO found re ICWA
• Length of stays for children in foster care
• ICWA Created
• Conclusions
• Recommendation for Executive Action
• Agency Comments and Our Evaluation

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What the GAO found re ICWA:

Placement decisions for children subject to ICWA can be influenced by how long it takes to determine that ICWA applies, the availability of American Indian foster and adoptive homes, and the level of cooperation between states and tribes. While these factors are unique to American Indian children, other factors can affect decisions similarly for all children. Many states, for example, place all children with relatives if possible and may consider changing placements for all children—regardless of ICWA status—when relatives are identified after initial placement. Our survey showed few differences between children subject to ICWA and other children in how often states had to decide whether to move a child to another home.

National data on children subject to ICWA are unavailable; data that were available from four states showed no consistent pattern in how long children subject to ICWA remained in foster care or how often they were moved to different foster homes compared to other children. In general, most children leaving foster care in fiscal year 2003 in the four states were reunified with their families, although children subject to ICWA were somewhat less likely to be reunified or adopted and were somewhat more likely to leave through a guardianship arrangement.

Length of Stay for Children Exiting Foster Care in FY 2003 in Four States

(This graph is an approximation from the GAO report.)

Comparing ICWA cases, Caucasions, and other minorities.

Percentage of children,

.......................Oregon .................South Dakota ...............Washington .................Oklahoma

Source: Data provided by child welfare agencies in these states.

ACF does not have explicit oversight responsibility for states’ implementation of ICWA and the information the agency obtains through its general oversight of state child welfare systems sometimes provides little meaningful information to assess states’ efforts. For example, the ICWA information states provided in their 2004 progress reports varied widely in scope and content and many states did not report on the effect of their implementation efforts. Further, while limited information from ACF’s reviews of states’ overall child welfare systems indicate some ICWA implementation concerns, the process does not ensure that ICWA issues will be addressed in states’ program improvement plans.

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ICWA created

In the 1960s and 1970s, American Indian children were about six times more likely to be placed in foster care than other children and many were placed in non-American Indian homes or institutions. In 1978, the Congress enacted the Indian Child Welfare Act (ICWA) to protect American Indian families and to give tribes a role in making child welfare decisions for children subject to ICWA.

ICWA requires that

1. tribes be notified and given an opportunity to intervene when the state places a child subject to ICWA in foster care or seeks to terminate parental rights on behalf of such a child and
2. children be placed if possible with relatives or tribal families.

This report describes

1. the factors that influence placement decisions for children subject to ICWA;
2. the extent to which, if any, placements for children subject to ICWA have been delayed; and
3. federal oversight of states’ implementation of ICWA.

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Conclusions:

important protections to prevent state child welfare agencies and courts from inappropriately separating American Indian children from their families. 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 on outcomes for children subject to the law, along with variations in how individual states, courts, social workers, and tribes interpret and implement ICWA, make it difficult to generalize about how the law is being
implemented or its effect on American Indian children. Our discussions with tribal officials, as well as our review of the limited information on ICWA implementation from the CFSRs, indicate that some problems with ICWA implementation are occurring, although we cannot estimate how extensive such problems are.

Gathering additional data from states about children subject to ICWA could provide a clearer picture about ICWA’s effect on children’s experiences in foster care and help determine the extent of any systemic problems with state implementation of the law. However, any new data collection effort would have to consider the differential burden and costs to the states of collecting this information, given that many states have few or no American Indians subject to the law in their child welfare systems.

With clear oversight authority, ACF would be better able to directly monitor states’ implementation of ICWA. However, even with its current authority, the agency has not made the most effective use of the relevant data it is able to gather as part of its oversight of states’ overall child welfare systems. For example, ACF already collects some information on states’ implementation of ICWA through the CFSRs as part of its assessment on how well states preserve the child’s connections with family members and the child’s community; a review of the findings related to ICWA implementation could provide an opportunity to further identify problems states are having implementing the law and any systemic problems existing across states that could be addressed with more specific
guidance or technical assistance. Similarly, the existing annual progress and services reports provide an opportunity for states and tribes to address ICWA implementation issues raised during the Child and Family Services Reviews that have not already been addressed in states’ program improvement plans.

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What GAO Recommends

GAO recommends that the Department of Health and Human Services’ Administration for
Children and Families (ACF) consider using ICWA compliance information available through its existing child welfare oversight activities to target guidance and assistance to states. HHS disagreed with our recommendation. We continue to believe that ACF could
use the information it gathers to help states improve their ICWA compliance.

Agency Comments and Our Evaluation:

We provided a draft of this report to HHS and the Department of the Interior for comments and their responses are reproduced in appendices III and IV, respectively. HHS also provided technical comments, which we incorporated as appropriate. The Department of the Interior’s BIA stated that it had no comments on the report as it has no oversight authority for states’ implementation of ICWA; however, it noted that the report’s information on ICWA grant funding is accurate.

HHS disagreed with our conclusions and recommendation. While HHS stated that it shares GAO’s concerns regarding states’ implementation of ICWA, it emphasized that it does not have the authority, resources, or expertise to address GAO’s recommendation. HHS also questioned GAO’s assumption that ACF is the most appropriate oversight agency for ICWA instead of another federal agency, such as BIA. HHS further commented
that there were limitations in data collection because we focused on states’ mplementation of ICWA, while HHS’s Indian Health Service stated that there is inadequate knowledge on which to base a realistic improvement plan and proposed an expanded study examining both state and tribal ICWA issues.

Our report recognizes HHS’s limited authority with respect to ICWA and our recommendation offers a way for the agency to assist states within its existing authority and resources as part of its current process for overseeing states’ child welfare systems. 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 as part of Title IV-B’s reporting requirements and, in fact, has issued guidance to states on ICWA implementation. We continue to believe that HHS could better use the ICWA information it already gathers during its CFSR reviews to improve the usefulness of states’ submissions on ICWA compliance. The information gathered by HHS, along with issues identified by tribes and states, suggest that some states could benefit from additional guidance on effective ICWA implementation.

Given that the Department of the Interior does not have any authority with respect to states’ implementation of ICWA and given HHS’s child welfare expertise and its existing systems for analyzing child welfare data and providing assistance to states, we believe that HHS is in the best position to continue to assist states in their ICWA reporting and implementation
efforts. Further, we believe that action to improve state efforts using existing information should not wait until further study of state and tribal issues provides more comprehensive information about ICWA implementation.

We are sending copies of this report to the Secretary of HHS, the Secretary of the Department of the Interior, appropriate congressional committees, and other interested parties. We will also make copies available to others upon request. In addition, the report will be available at no charge on GAO’s Web site at http://www.gao.gov.

If you have any questions or wish to discuss this report further, please call me at (202) 512-8403 or Lacinda Ayers at (206) 654-5591. Key contributors to this report are listed in appendix V.

Cornelia M. Ashby
Director, Education, Workforce, and Income Security Issues

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Contact us at

Christian Alliance for Indian Child Welfare
Box 467, Ronan, MT 59864


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