While lawyers and advocates dispute ICWA cases in court, where proceedings in the heavily backlogged foster-care system can drag on for months or years, American Indian children spend that time growing attached to a family who might not remain their family when the case is decided. It’s a challenge that’s built into the system. Social workers have to do “concurrent planning”—arranging to reunite a kid with his biological parents while also working to find a placement for the child if he cannot return home, explains Gregory Manning, who worked for nearly 20 years as a clinical psychologist in the Orange County, California, health department. A shortage of foster parents (Native or otherwise), combined with a rising number of children in out-of-home care, only makes the problem worse.
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That concurrent planning might be necessary, but it’s not easy for the child. Say a Native child is placed with a non-Native foster family, and the family decides that they want to adopt the child. If their request is denied, they might contest the court’s decision, further dragging out the legal process. The child stays with the foster family during those proceedings and spends more time apart from the Native American family she might end up with. At the end of the dispute, if the child is placed with a Native American family, she has to leave the foster family she’s grown attached to. Had the foster family not contested the court’s ruling, that separation would’ve been much easier—but sometimes the foster family wins. The Brackeens won. It’s impossible to know the outcome, and the uncertainty hurts the child most of all. “You can’t let this stuff go on indefinitely, because people get hurt. Children get hurt,” says Adam Pertman, a child-welfare expert and former journalist who reported on foster care.
Chrissi Ross Nimmo, the deputy attorney general for the Cherokee Nation, one of the tribes involved in the Brackeens’ case, told me in an email that some people “believe that if a child has developed a bond with a current placement, that child should never be moved (absent a safety risk).” But, she added, “tribes consider the child’s entire life and future,” including the importance of being raised with a close connection to the child’s biological family and culture.
“In a perfect world,” Nimmo explained, a child’s tribe is notified as soon as he is removed from his home. Then the tribe “can assist the state in finding an appropriate family placement.” This is one of ICWA’s main challenges: It cannot work if states do not comply. And with a foster-care system that’s underfunded and understaffed, with countless other county, state, and federal guidelines to follow, compliance is not always the norm. “The cases we see in the news usually pit the tribe against the foster parent, but these cases are outliers,” Nimmo said. More often, she added, “the tribe works hand in hand with the state agencies, family members, and placement providers to offer additional services and hopefully help achieve family reunification, which is the goal.”