Indian Child Welfare Act:

Existing Information on Implementation Issues Could Be Used to Target Guidance and Assistance to States

GAO-05-290: Published: Apr 4, 2005. Publicly Released: Apr 4, 2005.

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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.

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. 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 were required to provide 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.

Status Legend:

More Info
  • Review Pending-GAO has not yet assessed implementation status.
  • Open-Actions to satisfy the intent of the recommendation have not been taken or are being planned, or actions that partially satisfy the intent of the recommendation have been taken.
  • Closed-implemented-Actions that satisfy the intent of the recommendation have been taken.
  • Closed-not implemented-While the intent of the recommendation has not been satisfied, time or circumstances have rendered the recommendation invalid.
    • Review Pending
    • Open
    • Closed - implemented
    • Closed - not implemented

    Recommendation for Executive Action

    Recommendation: To improve the usefulness of the information states are required to provide on their ICWA compliance efforts, the Secretary of Health and Human Services should direct the head of the Administration for Children and Families to (1) review the ICWA implementation issues identified in its CFSRs, (2) require states to discuss in their annual progress reports any significant ICWA issues not addressed in their program improvement plans, and (3) consider using the information on ICWA implementation in the Child and Family Services Reviews, annual progress and services reports, and program improvement plans to target guidance and assistance to states in addressing any identified issues.

    Agency Affected: Department of Health and Human Services

    Status: Closed - Not Implemented

    Comments: While HHS stated that it shares GAO's concerns regarding states' implementation of the Indian Child Welfare Act (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, rather than another federal agency, such as the Bureau of Indian Affairs (BIA). Administration for Children and Families (ACF) continues to disagree with this recommendation: it took no action in FY07, did not respond to our request for an update in FY08, and reported no change in status in FY09. Review of relevant guidance since the report was published does not indicate that HHS is collecting any additional information with respect to ICWA compliance.

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