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April 5th, 2012 by Robert Franklin, Esq.
A native American tribe in Washington State, the Port Gamble S’Kallam, has taken over all aspects of child welfare cases, including adoption, from the state’s Department of Social and Health Services.  Read about it here (Seattle Times, 3/28/12). 

As quasi-sovereign entities, native American tribes can, to an extent, make their own laws and regulate their own affairs.   But until now, no tribe has done what the Port Gamble S’Kallam has.  From now on, the tribe will decide which children should be taken from their parents and placed in foster care, and who is fit to be a foster parent.  DSHS is out of the picture.

In order to qualify to conduct its own child welfare agency, the United States Department of Health and Human Services required the tribe to develop protocols for how the agency would operate.  Those took some three years to put into place.  My guess is that they look a lot like those of Washington and other states, which raises the issue of why the tribe wanted to take the reins of child welfare.

If other states are any indication, the main reason is that the Indian Child Welfare Act of 1978 isn’t working as it was intended to.  That law seeks to force states to place native American children with native American families when they’re taken from their parents.  There are certain exceptions to the rule, but over the years, states have managed to ignore the law’s requirements.  Here’s a piece I did on the subject last October. 

It links to an NPR article that says that some 32 states fail to comply with the Indian Child Welfare Act.  That is, they get around the requirement that Indian children be placed with native American families.  After all, there’s big money to be made by states that place children in foster care.  Specifically, the federal government pays states $4,000 per child taken into foster care.  If those children are considered to have “special needs,” the amount trebles.  So, for example, South Dakota simply denominates every Indian child a “special needs” child and in so doing, ups the flow of funds to the state.

Now, federal money will go to the Port Gamble S’Kallam tribe.  So I suspect that part of the motivation for the tribe to take over its child welfare cases is less than altruistic.  But, at the same time, the tribe has only 1,000 members, so how much money can they receive?  My guess is very little, although other tribes across the country are reportedly contacting the S’Kallam tribe to find out what they have to do to follow suit.

What surely played into the tribe’s decision were (a) the ability to place aboriginal children with aboriginal families and (b) the chance to get away from the often arbitrary and misguided actions of the state child welfare agency.

Under an agreement with the federal government, the tribe essentially severed the oversight by the state Department of Social and Health Services (DSHS) and became solely responsible for its child-welfare cases…

Francine Swift, a member of the Port Gamble S’Klallam tribal council, said it’s vital to have children stay on the reservation so they don’t forget their ancestry and traditions. She said that before the Indian Child Welfare Act, children were adopted out never learning who their parents were.

“We never want to see our kids go through this again,” Swift said.

For many, the practice of removing from reservations children in child-welfare cases hearkened to the infamous boarding-school era, when the federal government forcibly placed tribal children in harsh, militarylike institutions to assimilate them into the dominant culture. The schools slowly started to change in the 1930s, but they have been blamed for emotionally, psychologically, physically and spiritually damaging many who were sent there, eventually prompting a public apology by the secretary of the Bureau of Indian Affairs.

Unlike what often happens with state child welfare agencies, the goal of the S’Kallam tribe is to keep families together.

Juanita Holtyn, a 42-year-old tribal member, said she has raised her 4-year-old granddaughter, Aaliyah, for three years.

Her son, the girl’s father, is in prison, and the girl’s mother lives elsewhere in Kitsap County and plays no role in the child’s life. The tribe has designated Holtyn as Aaliyah’s foster mother.

“We’re lucky to have this program in the tribe to keep our families together. We’re preserving families,” Holtyn said, who hopes to reunite Aaliyah with her father once he is released from prison.

Undoubtedly, the influence of federal money has the potential to be pernicious.  Will native American child welfare organizations, that must by law operate in much the same way as those of states, end up doing things much differently when the flow of dollars from Washington starts?  Who knows?  But one tribe’s desire to get free of the state’s DSHS speaks volumes about their level of dissatisfaction with that agency.

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