A guiding principle of state and federal laws governing child abuse and neglect cases is that foster homes must be safe, comfortable and respectful in order to serve children’s “best interests.” The Agua Caliente Band of Cahuilla Indians has expanded that legal definition — requiring that children attend cultural events and learn their Native language.
In state courts, biological relatives are prioritized as “kinship caregivers.” But the Pueblo of Acoma defines kin more broadly, considering all tribal women of a certain age to be “aunties” or “grandmothers.”
Similarly, legal terms such as the “termination of parental rights” in foster care courts across the country focus on an individual child. In contrast, a growing number of tribes treat each child’s case as key to their nation’s very survival.
These differences are among the key findings to emerge from a National Indian Child Welfare Association (NICWA) research project concluding next month: Tribes have redefined and tailored U.S. laws governing foster care cases to match the priorities of their unique communities and cultures.
“A child without knowledge of the past is directionless in the path forward; a child without a nurturing present is denied the strengths that lead to the future,” states the child welfare code of the Lac Courte Oreilles Band of Lake Superior Ojibwe. “It is the Tribe’s policy to favor preventive action over belated reaction, meditation over confrontation, counseling over lecturing, conciliation over punishment.”
NICWA is a nonprofit working to strengthen the systems and influence the policies that support Indigenous children and families. Data experts Tara Reynon and Miriam Jorgensen are leading the organization’s inquiry, an analysis that has so far captured over 160 tribal child welfare and juvenile codes. They call the emerging trend a “decolonizing” of existing law.
The researchers’ project involves documenting how Native American communities and tribal courts address the care of vulnerable children. But it is also designed for sharing. The information is expected to be used by tribes that have yet to craft their own child welfare laws, or that seek to revise existing codes so they mirror their community’s unique traditions and belief systems.
“If somebody says, ‘I want our code to say how we’re going to survive as a nation,’ NICWA wants to have samples for them to look at, and tips on how to make it their own,” said Reynon, a member of the Puyallup Tribe of Indians. “There’s an appetite for this and we want to make sure there’s the best resources out there, because tribes themselves have the answers, it’s just helping them get some tools to do it.”
So far, the ongoing research has identified more than 160 tribes that have adopted community-specific child welfare laws. These preliminary findings were shared with The Imprint although the full report has yet to be released. But in an ideal world, Reynon said, all 574 federally recognized tribes will have their own “fully Indigenized” laws.
NICWA conducted a similar examination in 2016, described in the report “Tribal Child Welfare Codes as Sovereignty in Action.” That study looked at 107 tribal codes and focused on eight core areas, including child removal processes, mandatory reporting requirements and court jurisdiction.
In contrast with the more recent analysis, tribal-specific traditions were found “inconsistently or only rarely” in the codes examined nine years ago. Of the dozens of tribal codes currently being analyzed, 92% were created or updated in the last quarter-century.
The forthcoming analysis sets out to update the data and more closely examine “innovative practices that promote child safety and well-being in a culturally responsive way,” according to a press release about the project.
The 1978 Indian Child Welfare Act created a pathway for tribes to take jurisdiction from state courts when child custody cases involved their citizens or children eligible for tribal citizenship. Once a tribe takes over a case, they follow their own sets of laws about what happens to the children and relatives involved. And that process can look different in every tribal nation, the NICWA review shows.
“It’s this movement that’s decolonizing child welfare systems and getting away from the cookie-cutter lens,” said Reynon. “You’ve got this generation of people reclaiming their cultural identity.”
— Researcher Tara Reynon
Certain terms deviate significantly from legal language under federal law governing states. For instance, “extended family” who can be considered for placements or access to visits with a child go well beyond “the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.”
The Port Gamble S’Klallam Tribe’s Family Protection Code describes “extended family” in a far more expansive manner.
“This term does not have a precise definition,” it states. “Extended family ties are based on blood lines, marriage, friendship, and caring. All women in the community become ‘auntie’ or ‘grandma’ when they become a certain age, regardless of blood relationship.”
The code goes on to state that grandparents “including great and great-great grandparents,” aunts, uncles, siblings, cousins, “in-laws” and “step” relations also meet the definition. But “any member of the Port Gamble S’Klallam community who is reliable, responsible, loving, and willing to care for a child may be considered extended family.”
Got tips or feedback on tribal child welfare laws? E-mail nspears@imprintnews.org.
Another distinction can be found in the treatment of parents whose children are taken into foster care, the NICWA researchers noted. Under state and federal laws, parents are on a strict timeline to complete court-ordered services or face losing parental rights to their children. In contrast, tribes are less inclined to permanently sever parent and child, instead seeking permanent guardianships or “customary adoptions” that can involve maintaining ties with a biological mother or father, in accordance with tribal law. This is done to keep children close to their kin without severing their relationships with the broader community.
“It’s this movement that’s decolonizing child welfare systems and getting away from the cookie-cutter lens,” said Reynon. “You’ve got this generation of people reclaiming their cultural identity.”
The Klamath Tribes’ code, for example,stresses that the “best interests” of a child must give “full consideration” to the tribe’s “traditional and unique values.” And one of the stated purposes of the Agua Caliente Band of Cahuilla Indians’ laws is “to preserve and strengthen each child’s cultural and ethnic identity whenever possible by, for example, requiring visitation with extended family/Tribal Members, attendance at cultural events, and language classes, instead of leaving these practices up to the discretion of a guardian or conventional adoptive parent.” Spirit Lake Nation defines “best interest” as “the medical, psychological, educational, physical, spiritual, cultural, and emotional needs of a child which can reasonably be provided to ensure the best opportunity for a successful life.”
Many tribal codes being summarized in the upcoming report define the importance of proximity to kin and culture.
In Fort Yuma, the juvenile code recognizes its children as the “most important resource” and “vital to the continuing existence of the Quechan Tribe.”
With this project, researchers Reynon and Jorgensen set out to identify whether tribes have tailored child welfare codes — not what their impact has been, which is a different and a more complex research question, they said.
“But the current work is a necessary first step to make that determination,” Jorgensen said, and “helps lay the groundwork for such work.”
At an April conference, they also acknowledged more analysis is needed to “better understand the timeline for Indigenization of tribal nations’ child welfare codes.” But their overall impressions of the data so far reveal that more tribes than ever before are seeking to “reawaken, reclaim, and revitalize their ways of knowing, being, and doing” by codifying these beliefs into written law.
“We’re starting to see very explicit statements around how this isn’t just about protecting kids,” Jorgensen said, “but it’s about protecting families, as well as protecting a nation that is sustainable into the future.”
