    Indian Child Welfare Act: Existing Information on Implementation
    Issues Could Be Used to Target Guidance and Assistance to States
    (04-APR-05, GAO-05-290).

    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.
    -------------------------Indexing Terms-------------------------
    REPORTNUM:   GAO-05-290
        ACCNO:   A20677
      TITLE:     Indian Child Welfare Act: Existing Information on
    Implementation Issues Could Be Used to Target Guidance and
    Assistance to States
         DATE:   04/04/2005
      SUBJECT:   Child adoption
    	     Children
    	     Data collection
    	     Decision making
    	     Federal law
    	     Federal/state relations
    	     Foster children
    	     Indian affairs legislation
    	     Native American rights
    	     Native Americans
    	     Performance measures
    	     Program evaluation
    	     Public assistance programs
    	     Reporting requirements
    	     Surveys
    	     Child welfare
    	     Program implementation

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    GAO-05-290

    United States Government Accountability Office

    GAO

                           Report to Congressional Requesters

    April 2005

                                      INDIAN CHILD
                                      WELFARE ACT

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

    GAO-05-290

    [IMG]

    April 2005

    INDIAN CHILD WELFARE ACT

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

                                     What GAO Found

    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
    Percentage of children

    A

    AW

                                           A

    aucasian MC

    aucasian MC

                                      A aucasian M

    aucasian MC

                           inority IC inority inorityinority

    WIC

    WIC

    WIC

                                           C

    Oklahoma Oregon South Dakota Washington

    3 years or more 2 years - less than 3 years Less than 2 years

    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.

                     United States Government Accountability Office

    Contents

    Letter 1

    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

    Appendix I Scope and Methodology

    Appendix II	Children Exiting Foster Care in Four States, FY 2003

    Appendix III	Comments from the Department of Health and Human Services

    Appendix IV Comments from the Department of the Interior

    Appendix V GAO Contacts and Acknowledgments 83

    GAO Contacts 83
    Acknowledgments 83

    Tables

    Table 1: Main ICWA Provisions 7

    Table 2: Comparison of Legal Standards for Children Subject to
    ICWA and for Children Not Subject to ICWA 8

    Table 3: States with (1) Highest Percentage of Children Served in
    Foster Care Who Are American Indian and (2) Highest
    Number of American Indian Children Served in Foster
    Care, FY 2003 13

    Table 4: Tribal Membership Requirements for Selected Tribes, as
    Reported by Tribal Officials 15
    Table 5: State Child Welfare Agencies Reporting Challenges
    Related to the Availability of Foster Homes, FY 2003 23

    Table 6: State Child Welfare Agencies Reporting Challenges
    Related to the Availability of Homes for Adoption or Long-
    Term Guardianship, FY 2003 24

    Table 7: States Explicitly Addressing ICWA Compliance
    Requirements in Their 2004 Annual Progress and Services
    Reports 48

    Table 8: States Reporting the Use of Activities Suggested by ACF to
    Comply with ICWA 49

    Table 9: Relationship between ICWA Topics Discussed in States'
    2004 Annual Progress and Services Reports and Density of
    States' American Indian Population 50

    Table 10: ICWA Concerns Raised in CFSR Final Reports and
    Program Improvement Plans by State 52

    Table 11: Review of Tribal Notification and Placements in Cases
    Involving American Indian Children during Child and
    Family Services Reviews, 2002-2004 56

    Table 12: American Indian CFSR Cases Where Item Related to
    Preserving a Child's Connections Was Judged "Needing
    Improvement" During Child and Family Services Reviews,
    2001-2004 57

    Table 13: Number and Percentage of Children with Unknown
    Ethnicity Who Exited Care in FY 2003 for Four States 63
    Table 14: Criteria for Determining States' Tribal Population Density
    Categories 65
    Table 15: Tribal Population Density Categorization by State 66

    Figures

    Figure 1: American Indian Population Density by State 12
    Figure 2: Responses from 25 State Child Welfare Agencies on the
    Frequency with Which the State Requested Insufficient

    Information to Accurately Determine ICWA Status, FY 2003 18

    Figure 3: State Child Welfare Agencies Reporting the Frequency with Which
    Families Provided Information That Was Too Imprecise to Identify a Child's
    Specific Tribe, Requiring States to Send Membership Inquiries to Multiple
    Tribes, FY 2003 19

    Figure 4: Survey Results from 19 Child Welfare Agencies Reporting on How
    Often They Face Decisions about Moving a Child from a Foster Home to
    Another Placement When a Relative Came Forward Late in a Case 26

    Figure 5: Survey Results from 19 Child Welfare Agencies Reporting on How
    Often They Face Decisions to Move a Child from a Pre-adoptive Placement to
    Another Placement When a Relative Came Forward Late in a Case 27

    Figure 6: Survey Results from 15 State Child Welfare Agencies Reporting on
    How Often They Exempt Children from ASFA's 15 of 22 Provision, FY 2003 31

    Figure 7: Length of Stay for Children Exiting Foster Care in Four States,
    FY 2003 35

    Figure 8: Survey Results from 16 State Child Welfare Agencies Reporting
    How Many Children Remain in Foster Care Longer as a Result of Following
    ICWA Procedures, FY 2003 36

    Figure 9: Survey Results from 10 State Child Welfare Agencies Reporting on
    the Estimated Increased Time That Following ICWA Procedures Adds to a
    Child's Time in Foster Care, FY 2003 37

    Figure 10: Survey Results from 22 State Child Welfare Agencies Reporting
    on the Effect of Specific ICWA Procedures on the Time to Place a Child in
    a Permanent Home Compared to Other Children in Foster Care, FY 2003 38

    Figure 11: Survey Results from 19 State Child Welfare Agencies Reporting
    on How Often Courts Reject State Requests to Terminate Parental Rights for
    Children in Foster Care Because Evidence Does Not Meet Applicable Legal
    Standards, FY 2003 40

    Figure 12: Number of Placements for Children Exiting Foster Care in Three
    States, FY 2003 42 Figure 13: Percentage of Children Exiting Foster Care
    in FY 2003 by Reunification in Four States 43

    Figure 14: Children Exiting Foster Care through Adoption, FY 2003

    in Four States 44 Figure 15: Percentage of Children Exiting Foster Care in
    FY 2003

    by Guardianship in Four States 45 Figure 16: FY 2003 Foster Care Exits in
    South Dakota 75 Figure 17: FY 2003 Foster Care Exits in Washington 76
    Figure 18: FY 2003 Foster Care Exits in Oregon 77 Figure 19: FY 2003
    Foster Care Exits in Oklahoma 78

    Abbreviations

    ACF Administration for Children and Families
    AFCARS Adoption and Foster Care Analysis and Reporting System
    APSR Annual Progress and Services Report
    ASFA Adoption and Safe Families Act
    BIA Bureau of Indian Affairs
    CFSR Child and Family Services Review
    FY fiscal year
    HHS Department of Health and Human Services
    ICWA Indian Child Welfare Act
    PIP program improvement plan

    This is a work of the U.S. government and is not subject to copyright
    protection in the United States. It may be reproduced and distributed in
    its entirety without further permission from GAO. However, because this
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    separately.

    United States Government Accountability Office Washington, DC 20548

    April 4, 2005

    The Honorable Tom DeLay
    Majority Leader
    House of Representatives

    The Honorable Wally Herger
    Chairman
    Subcommittee on Human Resources
    Committee on Ways and Means
    House of Representatives

    The Honorable Pete Stark
    House of Representatives

    In the 1960s and 1970s, American Indian children were roughly six times
    more likely to be separated from their families and placed in foster care
    than other children and many were placed in non-American Indian homes
    or institutions. A lack of understanding of tribal cultures and
    child-rearing
    practices by state child welfare agencies and courts was a significant
    factor in this widespread removal of American Indian children from their
    homes. In 1978, the Congress enacted the Indian Child Welfare Act (ICWA)
    (Pub. L. No. 95-608) to protect American Indian families from the
    unwarranted removal of their children and to give tribes a role in making
    child welfare decisions for children subject to the law. According to the
    most recently available HHS data, American Indian children represented
    about 3 percent of the over 800,000 children who were in foster care in
    fiscal year 2003. The Census Bureau estimates that American Indian
    children comprised 1.8 percent of the total U.S. population under the age
    of 18 in 2003.

    ICWA established criteria for determining whether the tribe or the state
    should have custody of a child and make placement decisions.
    Specifically, ICWA gives tribes exclusive jurisdiction for tribal children
    who reside on a tribal reservation (unless a state has previously been
    given jurisdiction by federal law) and gives both states and tribes
    jurisdiction for tribal children who do not live on the reservation. In
    addition, ICWA established requirements for child welfare proceedings
    involving an American Indian child in state custody. For example,
    whenever state officials are concerned about the possible abuse or neglect
    of a child who is, or is eligible to be, a tribal member and seek custody
    of

    the child, ICWA requires that the tribe be notified of any court hearings
    involving the child and given the right to intervene in the proceedings.
    In addition, the law requires that efforts be made to place children
    subject to ICWA with relatives or tribal families, unless a good reason
    exists not to follow these placement preferences. While ICWA did not
    explicitly grant any federal agency oversight authority regarding states'
    implementation of ICWA, the Department of Health and Human Services' (HHS)
    Administration for Children and Families (ACF) monitors state compliance
    with federal child welfare laws.

    Proponents of ICWA believe that the law promotes the well-being of
    American Indian children by keeping them connected to their families,
    tribes, and cultural heritage. Others are concerned that ICWA's procedural
    requirements could result in American Indian children staying longer in
    foster care than they would in the absence of the law, working against the
    goals of more recent child welfare legislation. In 1997, the Congress
    enacted the Adoption and Safe Families Act (ASFA) (Pub. L. No. 105-89) to
    help states more quickly move children in foster care to safe and
    permanent homes. One key provision of the law requires states, with some
    exceptions, to file a petition to terminate parental rights for children
    who have been in foster care for 15 of the most recent 22 months-a
    requirement that could conflict with the belief expressed by many tribes
    that a parent's relationship with a child can never be severed.

    Because of your interest in how ICWA affects the foster care experiences
    of children subject to the law, as well as how ICWA is working in
    conjunction with ASFA, we examined the following: (1) the factors that
    influence placement decisions for these children, particularly as they
    relate to ASFA's goals of safety, permanency, and well-being of children;
    (2) the extent to which delays, if any, have occurred in the foster or
    adoptive placement of children subject to ICWA due to issues related to
    the implementation of ICWA and how any such delays have affected
    children's experiences in care; and (3) the federal government's role in
    overseeing states' implementation of ICWA. We have not included
    information about children who are under exclusive tribal jurisdiction
    because they reside on a reservation.

    To answer these questions, we surveyed state child welfare agency
    officials in all 50 states and the District of Columbia regarding their
    implementation of ICWA and their views on how ICWA's provisions affected
    children's experiences in foster care. We received responses from 47
    states and the District of Columbia. We checked for obvious errors and
    asked some states follow-up questions, but did not independently verify

    states' responses. We also surveyed officials in all 50 states and the
    District of Columbia to determine which states could identify children who
    were subject to ICWA in fiscal year 2003 using their automated systems.
    Only five states-Oklahoma, Oregon, Rhode Island, South Dakota, and
    Washington-were able to provide these data. Because Rhode Island had so
    few children subject to ICWA who left foster care, we dropped this state
    from our comparative analysis. To obtain tribal input, we conducted nine
    tribal panels in four states and conducted telephone interviews with nine
    regional intertribal organizations. Furthermore, we sent a letter to 591
    federally recognized tribal governments soliciting their input for our
    study and received responses from 74 tribes. We visited five
    states-California, Oklahoma, Oregon, South Dakota, and Rhode Island- where
    we interviewed state and local child welfare agency officials, state court
    officials, and officials from at least two tribes (except in Rhode Island,
    which has only one federally recognized tribe) to obtain more detailed
    information on ICWA implementation. We selected these states to represent
    a diversity of geographic locations, child welfare systems, and
    state-tribal relationships. Finally, we reviewed applicable laws and
    regulations; interviewed headquarters and regional officials from both ACF
    and the Department of the Interior's Bureau of Indian Affairs (BIA);
    reviewed results from ACF's assessments of state child welfare agencies,
    known as Child and Family Services Reviews (CFSR); reviewed program
    improvement plans (PIP) states submitted as part of the CFSR process; and
    reviewed annual reports that states are required to submit to ACF about
    their child welfare systems. We conducted our work between December 2003
    and January 2005 in accordance with generally accepted government auditing
    standards. A more detailed discussion of our scope and methodology appears
    in appendix I.

                                    Results in Brief

    Decisions regarding the placement of children subject to ICWA as they
    enter and leave foster care can be influenced by how long it takes to
    determine whether a child is subject to the law, the availability of
    American Indian foster and adoptive homes, and the level of cooperation
    between states and tribes. According to several child welfare officials ,
    these factors, which are unique to American Indian children, can play an
    important role in placement decisions, including the characteristics of
    the foster home in which the child will be placed, the number of
    placements a child will have, and the duration of the stay. For example,
    if the ICWA status of a child subject to the law is not known or if no
    American Indian foster homes are available when such a child first enters
    foster care, the state may not be able to place the child initially with a
    tribal family and may subsequently move the child to another foster home.
    However, other

    factors can influence placement decisions similarly for all children
    regardless of whether they are subject to the law. For example, ICWA
    requires that children subject to ICWA be placed with relatives, unless
    good reason exists not to do so, but many states have a similar policy for
    all children. In both cases, the state may face decisions about whether to
    change a child's initial placement when a relative is identified or comes
    forward after a child's initial foster care placement. Our survey results
    from 19 states responding to a relevant question showed that states face
    decisions to change a child's foster or adoptive placement with similar
    frequency, regardless of a child's ICWA status. Decisions about how
    children subject to ICWA leave foster care are also influenced by how well
    states and tribes work together to blend ICWA and ASFA requirements for
    moving a child through the foster care system. While cultural beliefs of
    many tribes conflict with ASFA's provision to move a child to adoption
    within certain time frames, results from the 15 states responding to a
    relevant survey question showed little difference in how frequently
    children subject to ICWA were exempted from ASFA's provision compared to
    other children.

    Data from four states that could identify children subject to ICWA in
    their information systems showed no consistent differences when comparing
    the length of time they spent in foster care compared to Caucasian or
    other minority children who exited foster care in fiscal year 2003. In two
    states, these groups of children stayed in foster care for similar periods
    of time; in Washington, however, children subject to ICWA who exited care
    were less likely than other children to leave foster care within 2 years,
    while those in Oregon were more likely to leave foster care within this
    time period. While not showing consistent differences in the length of
    time in foster care, data showed some different experiences among children
    when comparing how often they were moved to different foster homes or how
    they left the foster care system. For example, children subject to ICWA
    who exited care lived in a similar number of foster homes as other
    children in two of the three states having such data, but experienced a
    higher number of placements in Washington. In addition, while the data
    from the four states showed that most children who left foster care in
    2003 were reunified with their families, children subject to ICWA were
    somewhat less likely to leave foster care through reunification or
    adoption, and somewhat more likely to leave foster care through a
    guardianship arrangement compared to other children.

    While ICWA did not give any federal agency direct oversight responsibility
    for states' implementation of the law, ACF reviews some limited
    information reported by states under the agency's general oversight of

    state child welfare systems and its formal assessments of these systems in
    its Child and Family Services Reviews; however, the information is
    insufficient for ACF to assess states' efforts to implement the law's
    requirements. For example, while states are required to discuss ICWA
    implementation in their overall 5-year child and family services plans and
    in subsequent annual progress and services reports, ACF noted in its 2003
    guidance that states were having difficulties reporting on ICWA adherence
    and reiterated that states needed to provide a description of the specific
    measures taken to comply with the law. While ACF's Child and Family
    Services Reviews have identified some ICWA concerns in states, the
    structure of this oversight tool was designed to review the overall
    performance of a state's child welfare system, rather than any particular
    law or program. As a result, it does not ensure that ICWA concerns will be
    addressed or that identified problems will be included and monitored in
    states' program improvement plans. For example, our review of 51 CFSR
    reports showed that 10 reports, generally from states with small American
    Indian populations, had no discussion of ICWA implementation, while 32
    raised some concerns with how the law was implemented in the state, such
    as caseworkers receiving inadequate ICWA training or not consistently
    determining a child's ICWA status. Similarly, our review of 47 improvement
    plans provided by ACF as of December 2004 showed that 12 of the 32 states
    with ICWA implementation concerns identified during the CFSR review did
    not report any planned corrective actions.

    To improve the usefulness of the information states are required to
    provide on their ICWA compliance efforts, we are recommending that the
    Secretary of HHS direct the Administration for Children and Families to
    review ICWA implementation information available through the CFSRs and
    require states to discuss in their annual progress and services reports
    any significant ICWA issues not addressed in their program improvement
    plans. In addition, ACF should consider using the information on ICWA
    implementation in the Child and Family Services Reviews, annual progress
    reports, and program improvement plans to target guidance and assistance
    to states in addressing any identified issues. HHS disagreed with our
    recommendation, stating that it does not have the authority, resources, or
    expertise to address GAO's recommendation. 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.

    Background

    When the Congress enacted ICWA in 1978, it created certain requirements
    for child welfare proceedings involving American Indian children and
    established a number of protections for American Indian families. This
    differential treatment of American Indian children is not based on race,
    but on the child's political affiliation as a member or potential member
    of a tribe. As shown in table 1, the main ICWA provisions determine who is
    subject to the law and to which child custody proceedings the law applies.
    These provisions also address jurisdiction issues, tribal notification of
    child custody proceedings, and placement preferences for American Indian
    children entering foster and adoptive homes.

    Table 1: Main ICWA Provisions Definition of a child subject to ICWA

    ICWA defines a child as Indian if he or she is a member of a federally
    recognized tribe or if he or she is eligible for tribal membership and is
    the biological child of a tribal member. A child who has some American
    Indian blood, but not enough to qualify for membership in a federally
    recognized tribe, or who is a member only of a state recognized tribe, is
    not subject to ICWA.

                        Definition of child custody proceedings

    ICWA applies to the following child custody proceedings: (1) involuntary
    foster care placements; (2) petitions to terminate parental rights; (3)
    pre-adoptive placements; and (4) adoptive placements. ICWA does not apply
    to custody arrangements arising from divorce proceedings or placements by
    the juvenile justice system when a child commits an act that would be
    deemed a crime if committed by an adult.

    Jurisdiction

    American Indian tribes with active tribal courts have exclusive
    jurisdiction over child welfare proceedings for an American Indian child
    who resides on the tribal reservation.

    States and tribes share jurisdiction over child welfare proceedings
    involving a child subject to ICWA who does not reside on the tribal
    reservation. If a tribe or parent requests that a child custody proceeding
    be transferred to the jurisdiction of the tribe, the proceeding should be
    transferred to tribal jurisdiction, unless either parent objects to the
    transfer or good cause exists to not transfer the case. The tribal court
    has the right to decline any transfer request.

    Notification and intervention

    A tribe must be notified about any involuntary child welfare proceeding in
    state courts involving a child subject to ICWA and has the right to
    intervene in such cases.

    A tribe also has the right to intervene in cases in which a parent
    voluntarily relinquishes custody of a child subject to ICWA, but ICWA does
    not specifically require that tribes be notified about these cases.

                                Placement in foster care

    A child subject to ICWA cannot be placed in foster care unless clear and
    convincing evidence exists that continued custody by the parent is likely
    to result in serious damage to the child.

    a

                                 Placement preferences

    An American Indian child placed in foster care or a pre-adoptive placement
    shall be placed in the least restrictive, most family-like setting in
    which the child's special needs, if any, may be met. The child shall be
    placed within reasonable proximity to his or her home and preference shall
    be given, absent good cause to the contrary, to a placement with:

    1. a member of the child's extended family;

    2. a foster home licensed, approved, or specified by the tribe;

    3. an American Indian foster home licensed or approved by an authorized
    non-Indian licensing authority; or

    4. an institution approved by a tribe or operated by an American Indian
    organization that has a program suitable to meet the child's needs.

    When placing an American Indian child for adoption, preference shall be
    given, absent good cause to the contrary, to a placement with:

    1. a member of the child's extended family,

    2. other member's of the child's tribe, or

    3. other American Indian families.

    Source: Pub. L. No. 95-608.

    aStates are prohibited by law from delaying or denying a foster or
    adoptive placement in order to place a child with a family of the child's
    race or cultural background, but children subject to ICWA are excluded
    from this prohibition. 42 U.S.C. S: 1996b.

    ICWA also established other requirements for children subject to the law
    that differ from the requirements that apply to other children in foster
    care. As shown in table 2, ICWA requires states to provide active efforts
    to keep American Indian families together and to use more stringent legal
    standards for placing an American Indian child in foster care and
    terminating parental rights.

    Table 2: Comparison of Legal Standards for Children Subject to ICWA and
    for Children Not Subject to ICWA

    To Prevent Break Up of Family ICWA requires states to make "active
    efforts" to

    and/or To Reunify Family 	provide services designed to prevent the break
    up of an American Indian family before an American Indian child can be
    placed in foster care or the parental rights of an American Indian parent
    can be terminated. However, the state can place an American Indian child
    in foster care if the child is in immediate danger and then must make
    active efforts to reunify the child with the family.

    To Terminate Parental Rights Termination of parental rights cannot be

    Standard for Children Subject to ICWA

    granted unless the evidence indicates beyond a reasonable doubt that
    continued custody is likely to result in serious damage to the American
    Indian child.

    Standard for Children Not Subject to ICWA

    To receive foster care maintenance payments under Title IV-E of the Social
    Security Act, states must provide reasonable efforts to prevent the need
    for removing a child from his or her family and to reunify a child in
    foster care with his or her family. States are allowed to bypass
    reasonable efforts in certain egregious situations, such as when a parent
    has subjected a child to torture or sexual abuse.

    State statutes have a variety of different legal grounds for terminating
    parental rights on behalf of non-American Indian children. Four of the
    five states we visited required that the statutory grounds be proven by
    clear and convincing evidence, a lower standard than required by ICWA.

    Source: Pub. L. No. 95-608, Title IV-E of the Social Security Act, and
    state laws.

    Note: Beyond a reasonable doubt is the highest possible evidence standard
    and requires proof of such a convincing character that a person would be
    willing to rely and act upon it without hesitation in the most important
    of his or her own affairs. To establish a finding by clear and convincing
    evidence, which is the next highest evidence standard, requires proof that
    the particular facts are highly probable or create a firm belief that the
    allegation in question is true.

    ICWA also authorizes grant funding to American Indian tribes for operating
    child and family service programs. In fiscal year 2004, BIA administered
    an estimated $10.9 million in ICWA grants to tribes. These grants
    generally range from about $26,000 to $750,000, with the average being
    $60,000.

    Interaction of ICWA with While ICWA requires states to provide active
    efforts to reunify families,

    ASFA	ASFA requires states to move children more quickly through the child
    welfare system. Enacted in 1997, ASFA created fundamental changes in the
    nation's child welfare system and established two major goals for all
    children: (1) to make a child's safety the most important consideration in
    child welfare decisions and (2) to compel child welfare systems to make

    timely decisions regarding adoption or other permanent arrangements for
    children who cannot safely return home. One key ASFA provision (the "15 of
    22" provision) requires states to file a petition to terminate parental
    rights if a child has been in foster care for 15 of the most recent 22
    months unless (1) it is not in the child's best interests, (2) the state
    has not provided necessary reunification services, or (3) the child is in
    the care of a relative.

    Key Participants in State Child Welfare Systems

    State and local child welfare agencies and courts that hear child welfare
    cases all play a role in making placement decisions for children in foster
    care. Child welfare caseworkers receive and investigate reports of
    suspected maltreatment and recommend and locate appropriate social
    services. They also make recommendations to the court about whether a
    child should be removed from home, where the child should be placed, and
    where the child will ultimately reside. The judge assesses the information
    presented about a case and makes the placement decisions for children. For
    cases involving children subject to ICWA, the judge will review the
    recommendations of all parties involved in a case-the child welfare
    agency, the parents, the tribe, and any advocate appointed to represent
    the child's best interests-and determine the best placement option for the
    child.

    When placing a child in foster care, the state must ensure that the foster
    family can provide a safe environment that can meet a child's needs. To do
    this, each state develops its own standards and procedures for licensing
    foster homes. For example, a state may require foster parents to be
    emotionally stable and have no significant criminal or child abuse
    history. In addition, a state may require a home to meet certain physical
    requirements for safety purposes, such as having a smoke detector and
    being free of health and fire hazards. ICWA does not require American
    Indian homes to be licensed by the state. However, to be eligible to
    receive foster care maintenance payments under Title IV-E, families must
    meet state foster care standards or, for homes on or near Indian
    reservations, licensing standards established by the tribe.

    Federal Oversight of Child ACF is responsible for the administration and
    oversight of federal funding

    Welfare Programs 	to states for child welfare services under Titles IV-B
    and IV-E of the Social Security Act. Title IV-B authorizes funds to states
    to provide a wide array of services to prevent the occurrence of abuse and
    neglect and to prevent the need for foster care placements. Some tribes
    are eligible for Title IV-B grants as well. Title IV-E provides an
    open-ended individual entitlement for

    foster care maintenance payments to cover a portion of the food, housing,
    and incidental expenses for all foster children whose parents meet certain
    federal eligibility criteria and for whom certain judicial findings have
    been made. States can also be reimbursed for related administrative and
    child placement costs, including the recruitment and licensing of foster
    homes. Title IV-E also provides payments to adoptive parents of eligible
    children with special needs that can make it difficult for a child to be
    adopted, such as emotional, physical, or mental disabilities; emotional
    disturbance; being older than an age specified by the state; or being a
    member of a minority race. Under current law, ACF cannot provide Title
    IV-E funds directly to tribes. Some states have, however, established
    agreements with tribes to distribute Title IV-E funds to the tribes for
    tribal children who meet the Title IV-E eligibility requirements. As of
    June 2001, according to one study, 14 states and 75 American Indian tribal
    governments had Title IV-E agreements in place nationally.1

    To receive funds from Titles IV-B or IV-E, a state child welfare agency
    (or a tribe receiving Title IV-B funds) must submit the following reports,
    which are reviewed by ACF regional staff for compliance with all reporting
    requirements:

    o  	A 5-year child and family services plan (5-year plan) that describes
    the state's goals and objectives with regard to the needs and well being
    of children and families and the scope and adequacy of services available
    for children and families.

    o  	A description, developed in consultation with tribes and tribal
    organizations, of the specific measures taken by the state to comply with
    ICWA, which must be included in the state's 5-year plan, as required by
    amendments to the Social Security Act enacted in 1994 (Pub. L. No.
    103-432).

    o  	An annual progress and services report (APSR) to discuss the state's
    progress in meeting the goals outlined in its 5-year plan and to revise
    the 5-year plan goals if necessary.

    In 2000, ACF established a new federal review system to monitor state
    compliance with Titles IV-B and IV-E requirements. One component of this

    1See Eddie F. Brown and others, "Using Tribal/State Title IV-E Agreements
    to Help American Indian Tribes Access Foster Care and Adoption Funding,"
    Child Welfare, vol. LXXXIII, no. 4 (2004).

    system is the CFSR, which assesses state performance in achieving safety
    and permanency for children, along with well-being for children and
    families. The CFSR process includes a self-assessment by the state, an
    analysis of state performance in meeting national standards established by
    HHS, and an on-site review by a joint team of federal and state officials.
    Based on a review of statewide data, interviews with community
    stakeholders and some families receiving services, and a review of a
    sample of 50 child welfare cases, HHS determines whether a state achieved
    substantial conformity with: (1) outcomes related to safety, permanency,
    and well-being, such as keeping children protected from abuse and neglect
    and achieving permanent, stable living situations for children; and (2)
    key systemic factors, such as having an adequate case review system and an
    adequate array of services. States are required to develop program
    improvement plans to address identified shortcomings. ACF conducted its
    first state review in March 2001 and completed on-site reviews in all 50
    states and the District of Columbia by March 2004. States found to be
    operating in substantial conformity with Titles IV-B and IV-E must
    complete a full CFSR every 5 years, while states that are not in
    substantial conformity must begin a full CFSR review two years after
    approval of their program improvement plans.

    ICWA provides BIA with responsibility for administering grants to tribes
    for a variety of child welfare purposes and assisting states in
    identifying the tribal affiliation of a child upon request. However, BIA
    has no oversight authority in terms of how state child welfare agencies or
    state courts implement the law for American Indian children in state
    custody.

    American Indian Demographics and Tribal Membership Requirements

    According to Census estimates for 2003, approximately 4.4 million people
    in the United States report having some American Indian heritage,
    comprising 1.5 percent of the total population. This population includes
    individuals who may not be members or eligible for membership in a tribe,
    as well as individuals who are members of state recognized tribes. As
    shown in figure 1, the American Indian population is heavily concentrated
    in the West. In some cases, tribal members live in the same state as their
    tribe's reservation, and may live on or near the reservation. In other
    cases, tribal members live in states other than those where the tribe's
    lands are located. In other words, while a tribe's land may be located in
    a particular state, tribal members may live in many states around the
    country.

    Figure 1: American Indian Population Density by State

    Source: 2000 U.S. Census data.

    ACF collects information on the number of American Indian children in
    state foster care in its Adoption and Foster Care Analysis and Reporting
    System (AFCARS); however, states are not required to identify children who
    are subject to ICWA. According to the most recent AFCARS data provided by
    ACF, the percentage and number of American Indian children reported in
    foster care in fiscal year 2003 varied considerably from state to

    state.2 In 23 states, for example, American Indian children represented
    less than 1 percent of all children served in foster care in fiscal year
    2003. In five states, however, at least one-quarter of the foster care
    population was American Indian, as shown in table 3. In addition, while
    Oklahoma and California reported serving over 3,000 American Indian
    children in foster care in 2003, Delaware, Vermont, and the District of
    Columbia reported serving fewer than five American Indian children each.

    Table 3: States with (1) Highest Percentage of Children Served in Foster
    Care Who Are American Indian and (2) Highest Number of American Indian
    Children Served in Foster Care, FY 2003

    Percentage of children served in foster care who were American Indian Number of
                     American Indian children served in foster care

                           State       Percentage              State       Number
                          Alaska               62           Oklahoma        3,689
                    South Dakota               61         California        3,646
                         Montana               35          Minnesota        2,292
                    North Dakota               30             Alaska        1,735
                        Oklahoma               25         Washington        1,690
                       Minnesota               15       South Dakota        1,603
                      New Mexico               13             Oregon        1,219
                      Washington               11            Montana        1,028
                        Nebraska                9           Nebraska          825
                           Idaho                9            Arizona          798

    Source: AFCARS data from HHS's Children's Bureau.

    Not all American Indian children who enter foster care are subject to
    ICWA. In Washington, for example, of the 1,690 American Indian children
    identified in foster care in fiscal year 2003, the state reported that
    about 450 were subject to ICWA. American Indian children are only subject
    to ICWA if they are members of, or eligible for membership in, 1 of the
    over

    2However, previous GAO work indicates that the race and ethnicity data
    reported in AFCARS are not always accurate. See GAO, Child Welfare: Most
    States Are Developing Statewide Information Systems, but the Reliability
    of Child Welfare Data Could be Improved, GAO-03-809 (Washington, D.C.:
    July 31, 2003). In addition, while AFCARS data do not usually include
    American Indian children in tribal custody, these children are included in
    the AFCARS data for some states, affecting the comparability of state data
    on American Indian children. For example, when a tribe receives Title IV-E
    payments for children in tribal custody, these children are also included
    in a state's AFCARS data.

    500 federally recognized tribes. Federal recognition means that a tribe is
    formally recognized as a quasi-sovereign entity with a
    government-togovernment relationship with the United States. With federal
    recognition, tribes become eligible to participate in federal assistance
    programs and can be exempt from state and local jurisdiction. About 40
    other tribes are recognized by individual states, while other American
    Indian communities are not formally recognized as tribes by the United
    States or any individual state; children from these tribes are not subject
    to ICWA. Thirty-four states, most of which are located in the western
    portion of the United States, have federally recognized tribes. Five
    states, generally located in the eastern half of the country, have state
    recognized tribes, but no federally recognized tribes. Twelve states, also
    in the eastern half of the country, have no federally or state recognized
    tribes.

    As quasi-sovereign entities, tribes establish their own membership
    requirements, which can vary considerably, as shown in table 4. Two common
    conditions for enrollment are lineal descendency from a person named on a
    tribe's historical membership list (sometimes known as a "base roll") or a
    minimum amount of tribal blood (known as blood quantum). For example, to
    be eligible for membership in the Navajo Nation, individuals must have at
    least  1/4 Navajo blood, meaning that they may have one grandparent who is
    full-blooded Navajo or two grandparents who are each half Navajo. Other
    conditions may include residing on the tribe's reservation or having
    continued contact with the tribe.

    Table 4: Tribal Membership Requirements for Selected Tribes, as Reported
    by Tribal Officials

    Tribe Requirement

    Mooretown Rancheria (California) 	Descendency from 1 of 3 individuals
    responsible for distributing tribal assets when the tribe was terminated
    in 1958 (federal recognition of the tribe was subsequently restored in
    1983)

    Morongo Band of Cahuilla Mission Indians A 1/8 blood quantum and one
    parent of the Morongo Reservation (California) enrolled in the Morongo
    tribe

           Cherokee Nation of Oklahoma Descendency from 1899-1906 base rolls

    Pawnee Indian Tribe of Oklahoma A 1/8 blood quantum

    Confederated Tribes of the Grand Ronde Community of Oregon

    A 1/16 blood quantum and a parent enrolled at the time of the child's
    birth and at the time the child applies for enrollment (unless the parent
    is deceased)

                Confederated Tribes of the Umatilla Reservation (Oregon)

    One enrolled parent or grandparent and  1/4 blood quantum in any federally
    recognized tribe

    Narragansett Indian Tribe (Rhode Island)a Descendency from 1880-1884 base
    roll

    Crow Creek Sioux Tribe of the Crow Creek A  1/4 blood quantum in a Sioux
    tribe and Reservation (South Dakota) some Crow Creek blood

    Rosebud Sioux Tribe of the Rosebud A  1/4 blood quantum in a Sioux tribe
    and Indian Reservation (South Dakota) one parent is a member of the tribe

    Source: GAO interviews with tribal officials.

    aSince 1995, the tribe has closed its enrollment to all individuals older
    than 12 months.

    Tribes may change their tribal membership criteria, thereby changing a
    child's eligibility for ICWA. For example, an official from the Pawnee
    Indian Nation said that the tribe had recently lowered its blood quantum
    requirement from 1/4 to 1/8. Since 1995, the Narragansett tribe has closed
    its enrollment for most individuals.

    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

    Placement decisions for children subject to ICWA-including where a child
    should live upon entering foster care, how long the child should remain in
    care, and where the child should live permanently--can be influenced by
    the length of time it takes to determine a child's ICWA status, the
    availability of American Indian foster and adoptive homes, and how states
    and tribes work together to follow the provisions of ICWA and ASFA. These
    factors are unique to children subject to ICWA, but other factors-such as
    the timeliness in identifying relative caregivers and the availability of
    foster and adoptive homes-can influence placement decisions similarly for
    children who are not subject to the law. Similarly, while the cultural
    beliefs of many tribes may conflict with state implementation of ASFA
    provisions to move a child to adoption within certain time frames, our
    survey results from 15 states responding to a relevant question showed
    little difference in how frequently children subject to ICWA were exempted
    from ASFA's provision compared to other children.

    Identification of a Child's ICWA Status Can Be Challenging and Can
    Influence Placement Decisions

    Before a child can be placed in accordance with ICWA's placement
    preferences, the state has to identify the child as being subject to the
    law. A number of state and tribal officials emphasized the identification
    of a child's ICWA status as an important factor in placement decisions,
    while some state officials also reported challenges in making such
    determinations in a timely manner. According to several child welfare
    officials, determining that a child is subject to ICWA after initial
    placement decisions have already been made can sometimes lead to a child
    having more placements or spending more time in foster care, because, as
    some of these officials explained, they have to process the new
    information about a child's ICWA status, rethink decisions already in
    place, and possibly make new placement decisions.

    States report that they are making efforts to encourage the appropriate
    determination of children's ICWA status. The five states we visited have
    policies and procedures intended to ensure that social workers properly
    identify children subject to ICWA. For example, all of these states except
    Rhode Island have special forms to help them collect information about a
    child's family history needed by tribes to determine a child's tribal
    membership status. Many, although not all, state child welfare officials

    surveyed also reported having policies and procedures to help social
    workers identify children subject to ICWA. Of the 48 states responding to
    our survey, 33 indicated that they provided ICWA guidelines to social
    workers, while 27 indicated that they provided mandatory ICWA training for
    newly hired social workers.

    However, tribes and states report that the appropriate determination of a
    child's ICWA status does not always occur. Several tribal representatives
    we spoke with reported that state caseworkers do not always accurately
    determine a child's ICWA status, noting that appropriate identification
    varies widely from state to state and among localities within a state.
    Similarly, our survey of state child welfare officials indicates that
    state child welfare workers sometimes fail to collect the information
    necessary to accurately identify whether a child is subject to ICWA (see
    fig. 2). Of the 25 state child welfare agencies that could answer the
    relevant survey question, 7 reported that they often requested
    insufficient information to accurately identify a child's tribal
    membership, while 12 states reported that this happened on occasion. Child
    welfare officials and tribal representatives from California reported that
    some caseworkers may incorrectly assume that children with certain
    characteristics-such as blond hair or blue eyes or a Hispanic surname-are
    not subject to ICWA and do not ask if they have American Indian heritage.

    Figure 2: Responses from 25 State Child Welfare Agencies on the Frequency
    with Which the State Requested Insufficient Information to Accurately
    Determine ICWA Status, FY 2003

                                    Number of states

                                           12

    very oftenModeratelExtremely or

    y

    oftenOn occasion Seldom,

    ifev

                                           r

                                           e

    Source: GAO survey.

    Notes: The survey question was as follows: In fiscal year 2003, how often
    did your state experience any of the following circumstances related to
    identifying a child's ICWA status: state requested insufficient
    information to accurately identify a specific tribe?

    Eighteen states responded "data not available" or "do not know."

    Child welfare officials told us that their ability to identify a child's
    ICWA status can depend on the receipt of complete information from
    families and the timely response from tribes to states' inquiries about a
    child's tribal affiliation. They noted that families are not always
    forthcoming with information about a child's American Indian heritage,
    either because they lack the information or are reluctant to share it.
    When families provide imprecise information, social workers may need to
    contact multiple tribes to try to confirm a child's ICWA status. As shown
    in figure 3, 13 states reported that family members often provided
    imprecise information about their American Indian heritage and 12 states
    reported often contacting multiple tribes to determine whether a child was
    subject to ICWA.

    Figure 3: State Child Welfare Agencies Reporting the Frequency with Which
    Families Provided Information That Was Too Imprecise to Identify a Child's
    Specific Tribe, Requiring States to Send Membership Inquiries to Multiple
    Tribes, FY 2003

                                    Number of states

                                          8 8

                                    often Moderatel

    y

    oftenOn occasion Seldom,

    ifev

                                           r

                                           e

    yreV

    ICWA children

    Non-ICWA children

    Source: GAO survey.

    Notes: The survey questions were as follows: In fiscal year 2003, how
    often did your state experience any of the following circumstances related
    to identifying a child's ICWA status: (1) family or caregiver provided
    imprecise information to identify any specific tribe; and (2) family or
    caregiver provided imprecise information, requiring state to notify
    multiple tribes to determine if child was eligible for membership in one
    of them?

    Eighteen states responded "data not available" or "do not know" about the
    inability to identify a specific tribe, while 19 reported "data not
    available" or "do not know" about the need to send inquiries to multiple
    tribes.

    During our site visits, child welfare officials provided several reasons
    why parents are sometimes unable to provide information about a child's
    American Indian heritage. In some cases, according to an Oklahoma
    official, the mother may not know that the father is American Indian. A
    South Dakota social worker explained that a mother may not provide
    information about paternal relatives if she does not want the child placed
    with them. In other cases, officials from California and Oklahoma told us
    that families report that a relative may have American Indian heritage,
    but they do not know which tribe, making it difficult for child welfare
    workers

    to determine which tribe to contact. A county court worker in California,
    for example, said she has had parents who claimed some Sioux heritage, but
    did not know which Sioux tribe was involved. In these cases, she said she
    has to send inquiries to 16 tribes to determine if the child is eligible
    for membership in any of them. Social workers can ask BIA to assist them
    in identifying the appropriate tribe of a child; however, BIA does not
    have tribal membership lists and both tribal and state officials explained
    that BIA can do little to help identify a child's tribal affiliation.

    Once a social worker believes a child might be American Indian, an inquiry
    is usually sent to the tribe with whom the child might be affiliated to
    determine if the child is a tribal member or eligible for membership.
    Officials from all of our site visit states except Rhode Island told us
    that tribes vary in how quickly they respond to inquiries about a child's
    membership status. They noted that some tribes do not respond to inquiries
    in a timely manner, which can increase the time it takes to determine
    whether the child is subject to ICWA, although they acknowledged that some
    tribes lack staff and resources to respond more promptly. When a tribe
    does not respond, child welfare staff have to make additional phone calls
    or send additional letters to encourage the tribe to provide the requested
    information. However, several tribal officials reported that some ICWA
    inquiries from child welfare agencies do not contain sufficient
    information for the tribe to determine a child's membership status. They
    explained, for example, that tribes may need to know the names and
    birthdates of a child's family members in order to determine if a child is
    eligible for tribal membership, but the child welfare agency does not
    always obtain this information from families and include it in their
    inquiry letters.

    Even if sufficient information is gathered to determine that a child meets
    ICWA's requirements, some state courts may invoke the "existing Indian
    family exception" to determine that a child is not subject to the law.
    Some judges have ruled that the law does not apply when neither the child
    nor the child's parents have maintained significant social, cultural, or
    political ties with the tribe, although ICWA does not include this
    language. Without this exception, these judges reason that ICWA is
    unconstitutionally discriminatory because it treats American Indian
    children differently based solely on their ethnicity, as opposed to the
    family's political affiliation with the tribe. While courts in some states
    use this exception, courts in other states have explicitly rejected it,
    reasoning that such an exception is not included in the language of ICWA
    and that it undermines ICWA's purpose by allowing state courts to impose
    their own subjective values in determining what constitutes American
    Indian culture and who

    is an American Indian. Several tribal officials stated that this exception
    hinders the effective implementation of ICWA because state courts can
    invoke the doctrine to disregard placement preferences under the act.
    Legislation was introduced in the Congress to amend ICWA to eliminate this
    exception, but it was not enacted.

    Availability of American Indian Foster and Adoptive Homes Is a Key Factor
    Influencing Placement Decisions for Children Subject to ICWA

    Availability of American Indian Foster and Adoptive Homes

    State and tribal officials noted that the availability of American Indian
    foster and adoptive homes is a key factor in making placement decisions
    for children subject to ICWA that follow the law's placement preferences.
    When these children are initially placed with non-American Indian
    families, states and tribes have to make difficult decisions about whether
    to move the child if an American Indian foster or adoptive family later
    becomes available. However, many states have policies to place children
    with relatives whenever possible and, according to officials in two
    states, they face similar decisions about changing placements for children
    who are not subject to ICWA when relative caregivers become available
    after a child's initial placement with another foster family.

    The availability of American Indian foster and adoptive homes influences
    whether states place children subject to ICWA with a tribal family, as
    preferred by law. However, child welfare officials in the five states we
    visited described having a shortage of American Indian homes because
    families do not meet state licensing standards or pass state background
    checks required to become eligible for federal financial support in caring
    for a foster child. For example, a social worker in a local child welfare
    office in California told us that some American Indian homes that do not
    meet the physical standards required of state licensed foster homes, such
    as having no more than two children share a bedroom or ensuring that each
    child has a separate bed, are not approved as foster homes. Several tribal
    officials said, however, that state licensing standards do not always
    recognize the communal living situations common in American Indian
    communities and exclude appropriate American Indian caregivers. State
    officials in South Dakota and California also noted that tribes can
    license foster parents themselves using their own licensing standards.

    Similarly, child welfare officials said that some American Indian families
    have previous criminal convictions or reports of possible child abuse or
    neglect, which preclude the state from approving them as possible foster
    or adoptive parents. Several tribal officials, however, stated that
    criminal background checks sometimes disqualify an otherwise appropriate
    American Indian relative from caring for a child subject to ICWA. In some
    cases, these offenses occurred many years ago and do not impact an

    individual's fitness to serve as a potential foster or adoptive parent. A
    child welfare official we visited in Oregon noted that these background
    checks may exclude potential caretakers. Officials from Rhode Island and
    California stated that they will make exceptions in certain cases for
    homes that do not pass the required background check. For example,
    potential foster parents in California with a criminal background (that
    does not include serious offenses such as murder, kidnapping, or rape) may
    be approved if they prove they are rehabilitated. State child welfare
    officials and others have previously noted that background checks required
    by the federal government sometimes exclude otherwise appropriate
    caregivers without regard to whether they are American Indian or of other
    races.

    Tribal officials described other obstacles to recruiting American Indian
    foster families. Several tribal officials told us that American Indian
    families sometimes view the state licensing process as intrusive and
    insensitive. Child welfare officials in South Dakota told us that they
    believe that some American Indian families distrust state agencies and are
    not willing to complete the process to become approved caretakers. One of
    these officials also said that some American Indian families are already
    providing informal kinship care for American Indian children and cannot
    care for additional foster children. In addition, a few tribal officials
    said that states rely on the tribe to find relatives and tribal foster
    families for children subject to ICWA; however, some officials stated that
    tribes have limited resources to conduct such searches and to recruit
    tribal foster families themselves. Some tribal officials pointed out that,
    without direct access to Title IV-E funds, many tribes do not have the
    resources to reimburse foster families. ICWA authorizes federal grants to
    tribes for providing child welfare services, including licensing foster
    homes, but several tribal child welfare officials said that they need
    funds directed for this specific purpose to efficiently recruit American
    Indian foster homes.

    On our survey, more states reported difficulties locating American Indian
    foster homes for children subject to ICWA compared to locating other
    foster homes (see table 5). Of the state child welfare agencies responding
    to a relevant survey question, 15 reported that an American Indian foster
    home was often not available for the placement of a child subject to ICWA,
    while 6 states reported that they often did not have any type of foster
    home available for these children. Eight states faced similar problems
    finding appropriate foster homes for children who were not subject to
    ICWA.

    Table 5: State Child Welfare Agencies Reporting Challenges Related to the
    Availability of Foster Homes, FY 2003

    For children subject to ICWA For children not subject to ICWA

    American Indian foster Foster home (of any Foster home was home was not
    available background) was not available not available

                  Extremely often                     2                 0
                     Very often                       8                 3
                  Moderately often                    5                 3
                    On occasion                       6                11
                  Seldom, if ever                     2                 8
              Total states that could
                answer the question                  23                25
              Do not know or data not
                     available                       19                17

    Source: GAO survey of state child welfare agencies.

    Note: The survey question was as follows: How frequently in fiscal year
    2003 did your state encounter each of the following challenges: (a)
    appropriate foster home (of any ethnic background) for an ICWA child was
    not available; (b) appropriate American Indian foster home for an ICWA
    child was not available; and (c) appropriate foster home for a non-ICWA
    child was not available?

    Of the state child welfare agencies responding to a relevant survey
    question, 14 reported that American Indian homes for adoption or longterm
    guardianship were often not available, and an additional 8 states reported
    that they often did not have any type of home available, as shown in table
    6. However, 9 states faced similar problems finding homes for adoption or
    guardianship of children who were not subject to ICWA.

    Table 6: State Child Welfare Agencies Reporting Challenges Related to the
    Availability of Homes for Adoption or Long-Term Guardianship, FY 2003

    For children subject to ICWA For children not subject to ICWA

          American Indian adoptive Adoptive or long-term Adoptive or long-term or
          long-term guardianship guardianship home (of any guardianship home home
                was not available background) was not available was not available

                  Extremely often                     2                 0
                     Very often                       4                 1
                  Moderately often                    8                 7
                    On occasion                       5                 9
                  Seldom, if ever                     4                 7
              Total states that could                23                24
                answer the question
              Do not know or data not                20                18
                     available

    Decisions to Change a Child's Placement

    Source: GAO survey of state child welfare agencies.

    Note: The survey question was as follows: How frequently in fiscal year
    2003 did your state encounter each of the following challenges: (a)
    appropriate adoptive or long-term guardianship home (of any ethnic
    background) for an ICWA child was not available; (b) appropriate American
    Indian adoptive or long term guardianship home for an ICWA child was not
    available; (c) appropriate adoptive or longterm guardianship home for a
    non-ICWA child was not available?

    The availability of a foster home that provides services for a special
    needs foster child can also influence the placement of a child subject to
    ICWA. Some tribal and child welfare officials noted that some children are
    placed with non-American Indian families when they have special needs and
    require services that cannot be provided by most tribal homes. As social
    workers in a South Dakota child welfare office told us, tribes often agree
    that children with special needs, such as those stemming from fetal
    alcohol syndrome or reactive attachment disorder (a complex psychiatric
    illness that can affect young children and is characterized by serious
    problems in emotional attachments to others) should be placed within reach
    of the services they need, even if it means placing them with non-American
    Indian families.

    A child subject to ICWA may be placed with a non-American Indian family if
    relatives or American Indian foster or adoptive homes are not available or
    if the child's ICWA status was not determined when the child first entered
    foster care. If, after a placement decision has been made, the state
    learns that a child is subject to ICWA or that a relative or an American
    Indian foster or adoptive home has become available, the state and tribe
    face the difficult decision regarding whether to change a child's foster
    or pre-adoptive placement. Late identification of relatives also occurs
    for

    non-American Indian children. Almost all states, including the five we
    visited, have a policy to place all children with relatives, if possible.3
    Child welfare officials in three of these states said that relatives are
    sometimes reluctant to care for children initially and may only come
    forward once the state stops its efforts to reunify the family and begins
    to seek an adoptive family. Officials in these three states also noted
    that families coming forward later can occur with relatives of all
    children, regardless of their ICWA status.

    Our survey data indicate that states face decisions to change placements
    with similar frequency for children subject to ICWA and those not subject
    to ICWA. As shown in figure 4, 8 of the 19 states responding to a relevant
    question reported often having to make decisions about whether to keep
    children subject to ICWA with their current foster family compared to 9
    states often facing these decisions for other children.

    3Urban Institute, The Continuing Evolution of State Kinship Care Policies
    (Washington, D.C., 2002).

    Figure 4: Survey Results from 19 Child Welfare Agencies Reporting on How
    Often They Face Decisions about Moving a Child from a Foster Home to
    Another Placement When a Relative Came Forward Late in a Case

    Number of states

                                           11

    elExtremoften

    yoften

    n occasion SeldomO

    y

                                           r

    f, iev

                                           e

    oderatelM

    ICWA children

    Non-ICWA children

    Source: GAO survey.

    Notes: The survey question asked: to what extent did your state face the
    following challenges, situations, or events for ICWA and non-ICWA
    children: relative came forward late in a case, prompting need to decide
    between current foster placement and placement with a relative?

    Twenty-three states responded "data not available" or "do not know" for
    ICWA children, while 18 states responded "data not available" for non-ICWA
    children.

    Our survey showed that fewer of these same 19 states were likely to face
    decisions about whether to change a child's pre-adoptive home to place the
    child with a relative and that these decisions occurred about as often for
    children subject to ICWA as for other children not subject to the law. As
    shown in figure 5, six states reported often facing decisions about
    whether to keep children subject to ICWA with their current pre-adoptive
    family, while seven states reported often facing these decisions for other
    children.

    Figure 5: Survey Results from 19 Child Welfare Agencies Reporting on How
    Often They Face Decisions to Move a Child from a Pre-adoptive Placement to
    Another Placement When a Relative Came Forward Late in a Case

    Number of states

                                   9 often Moderatel

    y

    oftenOn occasion Seldom,

    ifev

                                           r

                                           e

    yreVICWA children

    Non-ICWA children

    Source: GAO survey.

    Notes: The survey question asked: to what extent did your state face the
    following challenges, situations, or events for ICWA and non-ICWA
    children: relative came forward late in a case, prompting need to decide
    between current adoptive placement and placement with a relative?

    Twenty-three states responded "data not available" or "do not know" for
    ICWA children, while 18 states responded "data not available" for non-ICWA
    children.

    Child welfare officials said that when facing decisions to change a
    child's placement, they would generally move a child to a home that was
    more in accordance with ICWA's preferences, unless this would create
    emotional problems for the child. For example, an assistant district
    attorney in Oklahoma said that she had a case in which the child had
    serious emotional issues as a result of witnessing a sibling's homicide at
    the hands of her mother. The attorney recommended against moving the child
    to a relative's home after 2 years of doing well living with a
    non-American Indian family. However, a few tribal officials said that they
    sometimes had difficulties getting state child welfare and court officials
    to move a child from an initial placement with a non-American Indian
    family, regardless of

    the circumstances. An Oklahoma tribe, for example, said a judge refused to
    move a child to an American Indian home after 3 days in a non-American
    Indian foster home because the child had already bonded with the foster
    family.

    Relationships with Tribes Can Affect Placement Decisions and How They
    Align with ASFA Provisions

    Tribal and State Relationships

    How well states and tribes work together can also affect placement
    decisions, particularly in agreeing on the appropriate permanency plan for
    a child. For example, while ASFA encourages states to move children into
    permanent homes quickly and emphasizes adoption for children who cannot
    return to their families, many tribes do not believe in terminating
    parental rights and do not support adoption. When tribes are not satisfied
    with placement decisions being made by the state, they can seek tribal
    jurisdiction of a case, which gives the tribe authority to make placement
    decisions for a child. However, officials in the five states we visited
    reported that tribes do not frequently seek jurisdiction of children
    subject to ICWA. Differences in opinion between tribes and private
    adoption agencies about how ICWA's placement preferences apply to children
    who are voluntarily relinquished for adoption can also affect placement
    decisions.

    The level of cooperation between tribes and states can affect placement
    decisions, particularly in agreeing on the appropriate permanency plan for
    a child. Tribal and state officials we interviewed described varying
    levels of communication and cooperation between tribes and child welfare
    agencies. In Oregon, for example, tribal, state, and local officials
    consistently reported that they worked closely together to make key
    placement decisions for children subject to ICWA. Social workers at the
    two local offices we visited emphasized that they consult with tribal
    staff about children subject to ICWA, work closely with them throughout a
    case, and give deference to the tribe's wishes about where the child
    should be placed and what the child's permanency goal should be. Because
    they work so closely with the tribes, some tribal and child welfare
    officials explained that they are generally successful in placing children
    subject to ICWA with relatives or American Indian families.

    Several tribal officials told us that they worked well with caseworkers in
    offices near the tribe, but not as well with social workers elsewhere. In
    Cherokee County in Oklahoma, for example, which includes the headquarters
    of the Cherokee Nation, state court and child welfare officials reported
    that they generally worked well with tribal officials and agreed on
    placements for children in foster care. Officials with the Cherokee child
    welfare program agreed that they had a good relationship

    Tribal Cultural Beliefs and ASFA

    with the local county child welfare staff, but stated that social workers
    in other counties and other states did not always work collaboratively
    with the tribe. Several other tribal officials added that some caseworkers
    will not involve the tribe in placement decisions and do not listen to the
    tribe's recommendations. Tribal officials said that when tribes and states
    work well together, children subject to ICWA are more likely to be placed
    with relatives or American Indian families.

    Tribal cultural beliefs can also influence decisions about a child's
    permanent placement. These cultural beliefs sometimes conflict with ASFA's
    15 of 22 provision, which requires states to file a petition to terminate
    parental rights for a child who has been in foster care for 15 of the last
    22 months. Officials from many tribes told us that their tribes do not
    believe that the connection between a parent and child can be severed and,
    therefore, they do not believe in the termination of parental rights. They
    expressed concern that states interpret ASFA to overemphasize adoption as
    a permanency goal when parents cannot reunify with their children.
    According to one tribal official, if a child is living with family members
    in a stable, long-term situation, the tribe considers that a permanent
    placement. Other tribal officials said that they would agree to adoption
    under certain circumstances, such as when relatives are adopting the child
    or if a parent has had no contact with a child in 2 years.

    Many of the tribal officials we spoke with also expressed concern that
    ASFA does not provide sufficient time for parents to reunify with their
    children. Some pointed out that ASFA's 15-month time frame for filing a
    petition to terminate parental rights does not provide sufficient time for
    American Indian parents to address difficult issues such as substance
    abuse. A previous GAO study reported on some of the difficulties state
    child welfare officials faced when applying ASFA's 15 of 22 provision to
    any family dealing with substance abuse issues.4

    While a state can determine that tribal cultural beliefs is a compelling
    reason to exempt children subject to ICWA from ASFA's 15 of 22 provision,
    our survey results, as well as previous work, indicate that children not
    subject to ICWA can also be exempted when adoption is not an appropriate
    plan. In our survey, for example, results from the 15 states

    4See GAO, Foster Care: Recent Legislation Helps States Focus on Finding
    Permanent Homes for Children, but Long-Standing Barriers Remain,
    GAO-02-585 (Washington, D.C.: June 28, 2002).

    that could answer a relevant question show little difference in how
    frequently they exempt children subject to ICWA from the 15 of 22
    provision compared to children not subject to ICWA (see fig. 6).
    Similarly, in two previous GAO reports, data from a limited number of
    states indicated that many of these states exempted numerous children from
    ASFA's requirement to file a petition to terminate parental rights after a

    5

    child has been in foster care for 15 of the most recent 22 months.
    According to two Oregon court officials we interviewed, all children who
    are unlikely to be adopted, such as those who have severe behavioral or
    mental health issues, are also exempted from this provision. One of these
    officials also said that both children subject to ICWA and those not
    subject to ICWA may be exempt when a child has been placed with
    grandparents who do not want to be part of terminating the parental rights
    of their own children.

    5See GAO, Foster Care: States' Early Experiences Implementing the Adoption
    and Safe Families Act, GAO/HEHS-00-1 (Washington, D.C.: Dec. 22, 1999) and
    GAO-02-585.

    Figure 6: Survey Results from 15 State Child Welfare Agencies Reporting on
    How Often They Exempt Children from ASFA's 15 of 22 Provision, FY 2003

                                   Number of states 9

                                           8

                                           8

    ICWA children

    Non-ICWA children

    Source: GAO survey.

    Notes: The survey question was as follows: In fiscal year 2003, how often
    did the following situations or events occur with ICWA and non-ICWA
    children: state decided to exempt child who had been in foster care for 15
    of the most recent 22 months from ASFA's requirement to file a petition to
    terminate parental rights?

    Twenty-six states responded "data not available" or "do not know" for ICWA
    children, while 22 states responded "data not available" or "do not know"
    for non-ICWA children.

    While several tribal officials told us that they will seek jurisdiction of
    a case and the associated authority to make placement decisions for a
    child if a tribe is not satisfied with the placement decisions being made
    by the state, officials from five states we visited told us they receive
    relatively few transfer requests for children subject to ICWA. Officials
    from many tribes we interviewed concurred that they do not request
    jurisdiction in many cases and discussed some factors they consider when
    deciding whether to transfer ICWA cases to tribal court. Tribal officials
    explained that they lack the resources to effectively provide for the
    needs of all children subject to ICWA and that states can generally offer
    more services for children than the tribes. However, officials from some
    tribes also said

                                           7

                                           6

                                           5

                                           4

                                           3

                                           2

                                           1

                                           0

    y

    ModerateloftenOn occasion Seldom,

    ifev

                                           r

                                           e

    Tribal and State Jurisdiction Decisions

    Placement Decisions for Children Voluntarily Relinquished for Adoption

    they will not request jurisdiction if the parent lives far from the
    reservation because the tribe will not be able to provide services or
    monitor the family. Officials from some tribes also told us that they
    allow children to remain in state custody with the state providing
    services if the state is working cooperatively with the tribe and if the
    tribe is satisfied with the decisions the state is making, but will seek a
    transfer if they have any concerns.

    When tribes do request a transfer of jurisdiction to tribal court, state,
    court, and tribal officials in four of the states we visited did not
    report any significant problems with tribal requests to transfer
    jurisdiction. However, child welfare and tribal officials in South Dakota
    described tensions relating to transfer requests. State, local, and court
    officials in the state expressed concerns that some tribal requests to
    transfer jurisdiction occur late in the case and often after the state has
    moved to terminate parental rights. Judges we interviewed in South Dakota
    said they would generally deny these requests as untimely. Officials from
    two South Dakota tribes we visited acknowledged that sometimes a parent
    who does not want to cooperate with the state will seek to transfer a case
    to the tribal court; one tribal official also noted that sometimes state
    courts do not provide a good reason for denying tribal transfer requests.
    During our tribal panels, tribal officials from other states also reported
    resistance at times from states with regard to transferring cases to
    tribal courts.

    While ICWA's placement preferences also apply to children who are
    voluntarily relinquished by their parents for adoption, tribal and private
    adoption agency officials we spoke to reported varying practices in
    implementing the preferences for these children. We discussed voluntary
    adoptions with tribal officials and representatives from private adoption
    agencies in the five states we visited and they reported different
    perspectives about how ICWA placement preferences should be applied in
    these circumstances and whether tribal or parental preferences should
    prevail if the two are in conflict. Officials with some tribes indicated
    that when they are informed about a voluntary adoption case involving a
    child who is a member or potential member of their tribe, they generally
    do not become involved in the private adoption proceedings. Officials in
    other tribes reported that they will intervene in these types of cases and
    oppose adoption placements that do not follow ICWA's placement
    preferences. Several tribal officials expressed concern that the tribe
    loses many potential tribal members through voluntary adoptions.

    Most of the private adoption officials we spoke with reported that tribes
    frequently accept a birth parent's choice of a non-American Indian

    Limited Data Show No Consistent Differences in Length of Stay or Other
    Foster Care Experiences for Children Subject to ICWA and Other Children

    adoptive family. In some cases, however, they said a tribe will insist
    that a child subject to ICWA be placed with relatives or with a family
    from the tribe. Several private adoption officials reported that many
    birth parents do not want to place their child with a tribal family or
    relatives on the reservation; if a tribe opposes the parent's choice of
    adoptive family, the birth parent frequently chooses to parent the child.
    In the opinion of some of these officials, a parent's wishes should
    constitute good cause for not following ICWA's placement preferences.
    However, officials from two Oklahoma tribes told us that private agencies
    do not have many American Indian adoptive families because many American
    Indian families cannot afford the sizeable adoption fees they charge; as a
    result, American Indian mothers are generally not given an opportunity to
    choose an American Indian adoptive family when they seek to voluntarily
    relinquish a child through a private agency.

    Limited data from four states showed that children subject to ICWA in some
    of these states had similar foster care experiences as children not
    subject to ICWA, while in other states, they had different experiences. In
    two of four states that could identify children subject to ICWA in their
    information systems, these children stayed in foster care for lengths of
    time similar to those of Caucasian children. In Washington, however,
    children subject to ICWA were less likely to leave foster care within 2
    years compared to Caucasian and other minority children, while in Oregon
    children subject to ICWA and other minority children were somewhat more
    likely to do so compared to Caucasian children. In addition, differences
    in the number of placements and the exit destinations of children subject
    to ICWA compared to other children were evident. Many states reported in
    our survey that they did not have the information necessary to comment on
    children's experiences in foster care, but only 3 of the 10 states
    responding to a relevant question reported that following ICWA's
    requirements lengthened a child's stay in foster care by 5 months or more.
    Data were not available from these states to determine whether these
    longer time periods resulted in children experiencing a higher number of
    foster care placements or differences in how children left the foster care
    system-whether through adoption, transfer to another agency, or by other
    means.

    Data from the four states-which may not reflect the experiences of other
    states-have some limitations.6 For example, while the percentage of
    missing data was small for most of these states, Oregon was unable to
    determine the race, ethnicity, or ICWA status of about 15 percent of
    children exiting foster care in fiscal year 2003. In addition, the data
    from Oklahoma, Oregon, and South Dakota include some children in tribal
    custody, while children in tribal custody are not included in the data
    from Washington (see apps. I and II for more information about the data
    provided by these states). In addition, our analyses are based on children
    exiting foster care, which can influence the measurement of foster care
    outcomes.7 We have only reported differences between groups that are
    statistically significant.8

    Data from the Four States and Survey Results Show Different Patterns in
    the Length of Time Children Subject to ICWA Stay in Foster Care

    While no national data exist, data from four states showed different
    patterns in the length of time children subject to ICWA spent in foster
    care compared to other children in fiscal year 2003. As shown in figure 7,
    children exiting foster care who were subject to ICWA in two states
    (Oklahoma and South Dakota) stayed in foster care for about the same
    period of time as Caucasian and other minority children. In Washington,
    however, children subject to ICWA who exited care were more likely to have
    longer foster care stays in comparison; in Oregon, they had shorter stays
    compared to Caucasian children, but similar stays compared to other
    minority children.9 Differences in lengths of stay can also be observed

    6Rhode Island also provided data on children subject to ICWA. However, we
    are not reporting this information because so few children subject to ICWA
    left foster care in Rhode Island in fiscal year 2003 and this data may not
    be representative of the experiences of children subject to ICWA in the
    state.

    7When collecting data on children who exit care, data on children
    currently in foster care are not included and children with shorter foster
    care stays are overrepresented, biasing the measured outcomes. For
    example, the overall lengths of stay for children exiting care tend to
    appear shorter due to this overrepresentation.

    8We tested the data for statistical significance using the chi square test
    and have reported differences between groups that are statistically
    significant at the 95 percent confidence level.

    9According to Washington officials, children who are subject to ICWA in
    their state are less likely to exit foster care within 30 days than other
    children, but are slightly more likely to exit care when they remain in
    care for more than 30 days. Oregon officials noted that children subject
    to ICWA in their state are less likely to exit care during their first
    month of foster care than other children. However, by the 24th month of
    care, the percentage of children subject to ICWA and other minority
    children exiting foster care exceeds the percentage of Caucasian children
    exiting foster care.

    among states. For example, in South Dakota, 81 percent of children subject
    to ICWA who exited care spent 2 years or less in foster care compared to
    63 percent of children subject to ICWA in Washington.

      Figure 7: Length of Stay for Children Exiting Foster Care in Four States, FY
                                          2003

                                 Percentage of children

    AICW

                                   Caucasian Minority

    AICW

                                   Caucasian Minority

    AICW

                                   Caucasian Minority

    AICW

                                   Caucasian Minority

    Oklahoma Oregon South Dakota Washington

                                    3 years or more

                              2 years - less than 3 years

                                   Less than 2 years

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

    Notes: The number of children subject to ICWA exiting care in fiscal year
    2003 was 214 in Oregon, 1,534 in Oklahoma, 592 in South Dakota, and 169 in
    Washington.

    Minority children can include American Indian children who are not subject
    to ICWA.

    Three of the states were not able to identify the race or ethnicity for
    all children exiting foster care and these children were not included in
    our analysis. The percentage of children with unknown ethnicity who exited
    foster care in 2003 was small in two of the states (0.2 percent in South
    Dakota and 1.7 percent in Washington), but was higher in Oregon (14.7
    percent).

    The data from Washington do not include any children who are in the
    custody of a tribal court. In Oregon, Oklahoma, and South Dakota, children
    who are in the custody of a tribal court and whose tribe has a Title IV-E
    agreement with the state are included in the state's data. In addition,
    the South Dakota data include some children who are in the custody of a
    tribal court, but for whom the state provides services and supervision.

    Due to rounding, figures may not add to 100 percent.

    Most states were unable to respond to our survey questions about the
    effect of following ICWA procedures on the amount of time children stay in
    foster care. However, of the 16 state child welfare agencies that answered
    this survey question, 4 states reported that hardly any children
    experienced longer stays in foster care as a result of following ICWA
    procedures, while 7 reported that only some children remained longer in
    foster care. The remaining 5 states reported that half or more of the
    children were affected by the law's requirements (see fig. 8).

    Figure 8: Survey Results from 16 State Child Welfare Agencies Reporting
    How Many Children Remain in Foster Care Longer as a Result of Following
    ICWA Procedures, FY 2003

                                       About half

                                          Most

                                       Hardly any

                                          Some

    Source: GAO survey.

    Notes: The survey question was as follows: Compared to children not
    subject to ICWA, overall, for about how many children subject to ICWA has
    following ICWA procedures increased the amount of time required to be
    placed in a permanent home?

    Twenty-six states responded "data not available" or "do not know."

    Of the 10 states in our survey that reported on the estimated increase in
    the amount of time to place a child in a permanent home as a result of
    following ICWA, most reported that the additional time was minimal. As
    shown in figure 9, officials in seven states reported that, on average,
    children experienced no more than 1 to 2 additional months in foster care.
    Only three states said that following ICWA requirements delayed a child's
    permanent placement 5 months or more.

    Figure 9: Survey Results from 10 State Child Welfare Agencies Reporting on
    the Estimated Increased Time That Following ICWA Procedures Adds to a
    Child's Time in Foster Care, FY 2003

    Less than a month

    No additional time

    More than 6 months

    5-6 months

    1-2 months

    Source: GAO survey.

    Notes: The survey question was as follows: On average, how much additional
    time does following ICWA procedures collectively add to the time it takes
    to place a child subject to ICWA in a permanent placement, compared to
    children not subject to ICWA?

    Thirty-two states responded "data not available" or "do not know."

    When asked about the effect of individual ICWA requirements, officials in
    most of the 22 responding states reported that following each of five ICWA
    requirements did not increase, or only somewhat increased, the time needed
    to place a child in a permanent home, as shown in figure 10. No more than
    eight states reported that following a specific ICWA procedure was
    responsible for a moderate or larger increase in the time children spend
    in foster care. While responses were fairly similar for the five ICWA
    requirements, more states reported that finding foster and adoptive homes
    in accordance with ICWA's placement preferences influenced a child's time
    in foster care.

    Figure 10: Survey Results from 22 State Child Welfare Agencies Reporting
    on the Effect of Specific ICWA Procedures on the Time to Place a Child in
    a Permanent Home Compared to Other Children in Foster Care, FY 2003

    Number of states

    18 17

    16

    14

    12

    10

    8

    6

    4

    2

    0 At most At least somewhat moderately increased increased Amount of time
    increased

    Identifying children who are subject to the law and which tribe(s) should
    be notified

    Notifying tribes of court hearings involving American Indian children

    Locating foster homes that are in accordance with ICWA's placement
    preferences

    Locating adoptive homes that are in accordance with ICWA's placement
    preferences

    Meeting required ICWA evidence standards for foster care placement and
    termination of parental rights decisions Source: GAO survey. Notes: The
    survey question was as follows: On average, how much have each of these
    required ICWA procedures increased, if at all, the total amount of time it
    takes to place ICWA children in a permanent placement compared to non-ICWA
    children?

    Nineteen states responded "data not available" or "do not know" about the
    effect of locating foster homes that are in accordance with ICWA placement
    preferences, while 21 states responded "data not available" or "do not
    know" to the remaining questions regarding identifying children who are
    subject to ICWA, notifying tribes, locating adoptive homes, and meeting
    ICWA evidence standards.

    For the "at most somewhat increased" category, the following response
    categories were grouped together: hardly or not at all increased and
    somewhat increased.

    For the "at least moderately increased" category, the following response
    categories were grouped together: moderately increased, greatly increased,
    and very greatly increased.

    One reason that some states may report few differences in length of stay
    for children subject to ICWA and other children is that officials in state

    child welfare agencies and courts may use similar standards that apply to
    all children, despite differences outlined in the law.

    o  	Active Efforts: ICWA requires states to provide "active efforts" to
    prevent the break up of an American Indian family, while states are only
    required to provide "reasonable efforts" for other children to receive
    federal funds. According to some state officials, as part of providing
    active efforts, caseworkers may offer extra assistance, such as
    transportation assistance or culturally-relevant services to American
    Indian families, and may spend more time trying to reunify the family,
    which can, in some cases, lead to a child remaining in foster care for a
    longer period of time. However, other state officials told us that the
    level of services offered to the general child welfare population has been
    increasing, blurring the line between active efforts and the "reasonable
    efforts" states are required to provide to all families whose children are
    taken into state custody. Officials in four states attributed this
    similarity to the influence of ASFA, noting that ASFA's time frames
    require states to provide more services upfront in order to decide after
    15 months whether to reunify a family or terminate parental rights. Some
    tribal officials disagreed and told us that social workers do not always
    provide active efforts to children subject to ICWA. In some cases, they
    said, state caseworkers simply refer parents to services without providing
    any additional assistance-essentially providing the same level of services
    as they would for a non-American Indian family.

    o  	Evidence Standard for Terminating Parental Rights: Some child welfare
    officials we interviewed in one state believe that ICWA's higher evidence
    standard for terminating parental rights can make it more difficult to
    terminate parental rights and prolong a child's stay in foster care in
    some cases. Other child welfare officials, however, do not consider ICWA's
    evidence standard to be a significant factor in placement decisions,
    because they believe that judges and juries use a similar evidence
    standard for all children. Our survey results also suggest that petitions
    to terminate parental rights are not often rejected for children subject
    to ICWA due to the higher evidence standard. As shown in figure 11, most
    of the 19 states responding to a relevant question reported that petitions
    on behalf of children subject to ICWA are seldom, if ever, rejected by the
    courts due to insufficient evidence. In fact, these states reported that
    courts rejected these petitions due to insufficient evidence more often on
    behalf of children not subject to ICWA.

    Figure 11: Survey Results from 19 State Child Welfare Agencies Reporting
    on How Often Courts Reject State Requests to Terminate Parental Rights for
    Children in Foster Care Because Evidence Does Not Meet Applicable Legal
    Standards, FY 2003

                                    Number of states

                                           13

                                    often Moderatel

    y

    oftenOn occasion Seldom,

                                           r

    ifev

                                           e

    yreV

    ICWA children

    Non-ICWA children

    Source: GAO survey.

    Notes: The survey question was as follows: In fiscal year 2003, how often
    did the following situations or events occur with ICWA and non-ICWA
    children: court rejected the state's request to terminate parental rights
    because the state's case did not meet the appropriate legal sufficiency
    standard for evidence?

    Twenty-four states responded "data not available" or "do not know" for
    ICWA children, while 19 states responded "data not available" or "do not
    know" for non-ICWA children.

    Data from Four States Show Some Differences in How Children Subject to
    ICWA Move through Foster Care

    While only three of the four states provided placement information, data
    from two of these states showed no differences in the number of placements
    experienced by children subject to ICWA and other children who exited
    foster care.10 In Washington, however, children exiting care who were
    subject to ICWA were more likely to have a greater number of placements
    than Caucasian or other minority children, as shown in figure

    12. Additional statistical analyses of the state placement data showed
    children subject to ICWA in Washington were less likely than other
    children to have one or two placements and more likely to have four or
    more placements than Caucasian children. The analyses also showed that
    Oregon children subject to ICWA were less likely than Caucasian children
    to have four or more placements.11 These data also indicate differences
    among states in the number of placements. For example, South Dakota
    reported that 26 percent of children exiting foster care who were subject
    to ICWA had three or more placements while in foster care compared to 37
    percent in Washington.

    10Oklahoma did not include data on number of placements for children
    subject to ICWA in response to our data request.

    11Oregon officials explained that, compared to children subject to ICWA, a
    higher percentage of Caucasian children remain in foster care for more
    than 24 months, which may be a factor in Caucasian children being more
    likely to have four or more placements. They said that their data show
    that children subject to ICWA and Caucasian children have a similar number
    of placements during their first 12 months in foster care.

    Figure 12: Number of Placements for Children Exiting Foster Care in Three
    States, FY 2003

                                 Percentage of children

    A

                                       Caucasian

    inorityM

                                      A Caucasian

    inorityM

    AICW

    aucasianC

    inorityM

    WIC

    WICOregon South Dakota Washington

    3 or more

    2 or less

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

    Notes: The number of children subject to ICWA exiting care in fiscal year
    2003 was 214 in Oregon, 592 in South Dakota, and 169 in Washington.

    Minority children can include American Indian children who are not subject
    to ICWA.

    Washington could not identify the number of placements for two Caucasian
    children (less than 1 percent) and six minority children (less than 1
    percent).

    Three of the states were not able to identify the race or ethnicity for
    all children exiting foster care and these children were not included in
    our analysis. The percentage of children with unknown ethnicity who exited
    foster care in 2003 was small in two of the states (0.2 percent in South
    Dakota and 1.7 percent in Washington), but was higher in Oregon (14.7
    percent).

    The data from Washington do not include any children who are in the
    custody of a tribal court. In Oregon and South Dakota, children who are in
    the custody of a tribal court and whose tribe has a Title IV-E agreement
    with the state are included in the state's data. In addition, the South
    Dakota data include some children who are in the custody of a tribal
    court, but for whom the state provides services and supervision.

    Data from the four states showed some differences in how children subject
    to ICWA left foster care compared to other children. When comparing
    whether they left the foster care system to reunify with their

    families, left under another type of permanent arrangement (such as
    adoption or guardianship), or left under different circumstances, most
    children in these states who left the foster care system in 2003 were
    reunified with their families. However, some significant differences can
    be observed. In Washington, for example, reunification rates for children
    subject to ICWA were significantly lower compared to Caucasian or other
    minority children. In Oklahoma, children subject to ICWA and Caucasian
    children were less likely to be reunified than other minority children.
    Differences were also found based on the state where children lived. For
    example, the reunification rate for children subject to ICWA was 58
    percent in Oklahoma, but only 36 percent in Washington.

    Figure 13: Percentage of Children Exiting Foster Care in FY 2003 by
    Reunification in Four States

    Percent of children exiting care

    100

    90

    80

                                         69 70

    70

    60

    50

    40

    30

    20

    10

    0 Oklahoma Oregon South Dakota Washington

    ICWA

    Caucasian

    Other minority

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

    Notes: The number of children subject to ICWA exiting care in fiscal year
    2003 was 214 in Oregon, 1,534 in Oklahoma, 592 in South Dakota, and 169 in
    Washington.

    Minority children can include American Indian children who are not subject
    to ICWA.

    Three of the states were not able to identify the race or ethnicity for
    all children exiting foster care and these children were not included in
    our analysis. The percentage of children with unknown ethnicity who exited
    foster care in 2003 was small in two of the states (0.2 percent in South
    Dakota and 1.7 percent in Washington), but was higher in Oregon (14.7
    percent).

    The data from Washington do not include any children who are in the
    custody of a tribal court. In Oregon, Oklahoma, and South Dakota, children
    who are in the custody of a tribal court and whose tribe has a Title IV-E
    agreement with the state are included in the state's data. In addition,
    the South Dakota data include some children who are in the custody of a
    tribal court, but for whom the state provides services and supervision.

    Children subject to ICWA were somewhat less likely than Caucasian
    children, and about as likely as other minority children, to leave foster
    care through adoption in the four states, as shown in figure 14. Adoption
    rates for children subject to ICWA were fairly comparable among the
    states, ranging from 12 percent to 17 percent.

    Figure 14: Children Exiting Foster Care through Adoption, FY 2003 in Four
    States

    Percent of children exiting care 25

                                         21 21

    20

    15

    10

    5

    0 Oklahoma Oregon South Dakota Washington

    ICWA Caucasian Other minority Source: Data provided by child welfare
    agencies in these states.

    Notes: The number of children subject to ICWA exiting care in fiscal year
    2003 was 214 in Oregon, 1,534 in Oklahoma, 592 in South Dakota, and 169 in
    Washington.

    Minority children can include American Indian children who are not subject
    to ICWA.

    Three of the states were not able to identify the race or ethnicity for
    all children exiting foster care and these children were not included in
    our analysis. The percentage of children with unknown ethnicity who exited
    foster care in 2003 was small in two of the states (0.2 percent in South
    Dakota and 1.7 percent in Washington), but was higher in Oregon (14.7
    percent).

    The data from Washington do not include any children who are in the
    custody of a tribal court. In Oregon, Oklahoma, and South Dakota children
    who are in the custody of a tribal court and whose tribe has a Title IV-E
    agreement with the state are included in the state's data. In addition,
    the South Dakota data include some children who are in the custody of a
    tribal court, but for whom the state provides services and supervision.

    Children subject to ICWA were somewhat more likely to exit foster care
    through a guardianship arrangement than either Caucasian or minority
    children, as shown in figure 15. Guardianship rates for children subject
    to ICWA were fairly similar in three states, ranging from 7 percent to 9
    percent, but were higher in Washington.

    Figure 15: Percentage of Children Exiting Foster Care in FY 2003 by
    Guardianship in Four States

    Percent of children exiting care

    25

    20

    15 15

    10

    5

    0 Oklahoma Oregon South Dakota Washington

    ICWA

    Caucasian

    Other minority

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

    Notes: The number of children subject to ICWA exiting care in fiscal year
    2003 was 214 in Oregon, 1,534 in Oklahoma, 592 in South Dakota, and 169 in
    Washington.

    Minority children can include American Indian children who are not subject
    to ICWA.

    Three of the states were not able to identify the race or ethnicity for
    all children exiting foster care and these children were not included in
    our analysis. The percentage of children with unknown ethnicity who exited
    foster care in 2003 was small in two of the states (0.2 percent in South
    Dakota and 1.7 percent in Washington), but was higher in Oregon (14.7
    percent).

    The data from Washington do not include any children who are in the
    custody of a tribal court. In Oregon, Oklahoma, and South Dakota, children
    who are in the custody of a tribal court and whose tribe has a Title IV-E
    agreement with the state are included in the state's data. In addition,
    the South Dakota data include some children who are in the custody of a
    tribal court, but for whom the state provides services and supervision.

    While most children who exit foster care are placed in permanent homes,
    many leave foster care under different circumstances-for example, when
    they turn 18, run away, or are transferred to another agency. Children
    subject to ICWA in three states were significantly more likely than
    Caucasian children to be transferred to another agency. According to a
    child welfare official in South Dakota, the state does not have
    information to determine what type of agency these children were
    transferred to, but said that other agencies could include tribal courts,
    juvenile justice facilities, and agencies for the developmentally
    disabled. Officials in Oklahoma and Washington reported that most children
    subject to ICWA in this category are transferred to tribal court.

    While transfer rates for children subject to ICWA were generally 11
    percent or less, in Washington, transfer rates were nearly three times as
    high, and this was the second most common way for children subject to ICWA
    to leave foster care. Washington officials explained that the state seeks
    to identify a child's tribal affiliation and transfer a child to tribal
    jurisdiction whenever appropriate. They noted a relationship between the
    higher transfer rate and the lower reunification rate for children subject
    to ICWA in their state, pointing out that if the percentage of children
    reunified and the percentage transferred are combined, the total
    percentage is similar for all groups of children. We reviewed exit data
    using an alternative methodology that excluded transfers and found that
    differences among children subject to ICWA, Caucasian children, and other
    minority children were somewhat less. However, children subject to ICWA
    were still somewhat less likely to leave foster care through adoption and
    somewhat more likely to leave under a guardianship arrangement than other
    children.

    While ICWA did not give ACF direct oversight responsibility for states'
    implementation of ICWA, the agency reviews limited information as part of
    its general oversight of states' child welfare systems; however, the
    monitoring processes in place sometimes provide little information that
    ACF can use to assess states' efforts to implement the law's requirements.
    States are required to discuss ICWA implementation in their overall 5-year
    child and family services plan and in their annual progress and services
    reports, but states are not required to use a standard reporting format
    and some states provide little meaningful information with respect to ICWA

    ACF Obtains Limited Information on ICWA Implementation through Its
    Oversight of States' Child Welfare Systems

    implementation. ACF's reviews of states' overall child welfare systems
    through its CFSR process have greater potential to identify state
    implementation issues, but the structure of this oversight process does
    not ensure that ICWA issues will be addressed in the various aspects of
    the review itself or that identified problems will be addressed and
    monitored in states' program improvement plans or through other means.

    ACF Has Limited Oversight Authority and Some States Report Little
    Information on ICWA Implementation

    ICWA did not give any federal agency explicit oversight responsibilities
    with respect to states' implementation of the law nor did it require
    states to report on their implementation efforts. Recognizing the lack of
    reporting requirements, the Congress amended Title IV-B to require state
    child welfare agencies to report to ACF on their efforts to comply with
    ICWA in their 5-year plans and to develop these plans in consultation with
    tribal organizations in the state. This reporting requirement provides ACF
    with some limited oversight authority, since it monitors states'
    compliance with Title IV-B requirements. ACF officials emphasized that the
    agency does not administer ICWA and is not authorized to take any
    enforcement actions for failure to comply with the act, although they
    encourage states to comply with ICWA. ACF guidance issued for developing
    the 5-year plans covering fiscal years 2000 through 2004 required states
    to provide a description of the specific measures to be taken to comply
    with ICWA, which, at a minimum, must provide for (1) the identification of
    American Indian children, (2) the notification of tribes, and (3) giving
    preference to American Indian caregivers when determining out-of-home or
    permanent placements for American Indian children. Additional guidance
    issued in 2000 (1) required states to discuss ICWA implementation in their
    annual progress and services reports, which discuss progress made in
    implementing the 5-year plans; (2) emphasized the need for states to
    consult with tribal organizations; and (3) recommended that states with no
    federally recognized tribes consult with urban or national American Indian
    organizations in the development of their plans.

    In its guidance for states' 2003 annual progress and services reports, ACF
    noted that states appeared to be having difficulties reporting on ICWA
    adherence and reiterated that states needed to provide a description of
    the specific measures taken to comply with the law. However, as of
    December 2004, ACF had not established standard guidelines or tools for
    reviewing and evaluating the completeness of state ICWA compliance
    activity in these reports. Reviews of state reports have shown that they
    do not always include information that ACF would need to monitor states'
    implementation of the law, because they either do not include ICWA
    implementation information or do not explicitly address progress made to

    implement the law. A study of the 1999 5-year plans and the 2000 annual
    progress and services reports by researchers from Washington University in
    St. Louis found that three-quarters of the states did not address all
    three of ACF's required measures and over half of the states failed to
    address any of the required measures.12 Our more recent review of 48
    states' annual progress and services reports submitted to ACF in 2004
    showed similar results in addressing all three areas (see table 7),
    although only 4 states did not address ICWA at all. While all states have
    the same reporting requirements, we noted that states having higher
    concentrations of American Indians were somewhat more likely to address
    all three ACF reporting requirements than other states.

    Table 7: States Explicitly Addressing ICWA Compliance Requirements in Their 2004
                          Annual Progress and Services Reports

         Tribal                                        Addressed ICWA
    Population                                      compliance, but
        Density       All 3 2 required 1 required not any required Did not
                   required areas      area
    Categorya      areas  addressed  addressed areas explicitly address  Total
                  addressed                                 ICWA
           I              3          0          1                       8 0    12
           II             3          0          1                       6 0    10
          III             1          1          2                       6 0    10
           IV             2          4          4                       2 4    16
         Total            9          5          8                      22 4   48b

    Source: GAO review of states' 2004 annual progress and services reports.

    aCategory I represents states with the highest tribal population densities
    and Category IV represents states with the lowest tribal population
    densities. See appendix I for more information about the creation of these
    categories and which states are included in each.

    bApproved annual progress and services reports for three states were not
    available at the time of our review.

    Even when states do provide ICWA information on the three required areas,
    our review revealed that the reports varied widely in scope and content,
    making it sometimes difficult to determine what progress states were
    making in implementing the law. For example, North Dakota's report
    discussed numerous ICWA-related topics, including contacting tribes to
    elicit suggestions for increasing relative or tribal placements. However,
    the state did not provide information on the extent to which it was
    successful in giving preference to American Indian caregivers when placing
    American

    12Brown, E. F.; Limb, G. E.; Munoz, R.; and Clifford, C. A.; Title IV-B
    Child and Family Services Plans: An Evaluation of Specific Measures Taken
    by States to Comply with the Indian Child Welfare Act (Seattle, Wash.:
    Casey Family Programs, 2001).

    Indian children. In other cases, reports are missing information on state
    actions taken to implement ICWA. During our site visit to Oregon, for
    example, we noted that the state had procedures to identify ICWA children,
    notify tribes, and follow ICWA's placement preferences that were not
    reflected in the state's 2004 annual progress and services report
    submitted to ACF.

    ACF guidance issued in 2000 lists several suggested ICWA activities that
    states may choose to address in their 5-year plans. Addressing these
    activities is not required, but could provide a better picture of efforts
    states are taking to improve how ICWA is being implemented. These
    activities include training programs, development of caseworker
    expectations, recruitment of American Indian foster homes, and agreements
    to recognize and use tribal foster homes. While some states included
    information on some of these suggested activities in their annual progress
    and services reports, they often did not discuss the relative success of
    their efforts, which limited the usefulness of this information for
    oversight purposes. For example, while table 8 shows that 31 states
    discussed their ICWA training efforts, our review showed that only 2
    states reported how many staff were trained.

    Table 8: States Reporting the Use of Activities Suggested by ACF to Comply
    with ICWA

    Number of Suggested ICWA Activities in ACF Guidance states

    Training programs for state employees

    Forms/procedures that include tribal affiliation and notification

    Development of state caseworker compliance expectations or measures

    ICWA-related collaborations with local agencies to provide services to
    American Indian children

    State partnership agreements with tribes

              Culturally appropriate standards for foster home licensing 1

                     Recruiting of American Indian foster homes 14

            Promotion of relative placements for American Indian children 5

                Recognition and use of foster homes licensed by tribes 4

                                       Othera 32

    Source: GAO review of states' 2004 annual progress and services reports.

    aOther activities states reported include hiring ICWA specialists and
    holding ICWA conferences.

    As shown in table 9, on average, states with higher American Indian
    population densities discussed more ICWA activities in their annual
    progress and services reports than states with lower population densities.

    Table 9: Relationship between ICWA Topics Discussed in States' 2004 Annual
    Progress and Services Reports and Density of States' American Indian
    Population

    American Indian population density Average number of ICWA measures

    a

    category discussed in APSR

    4.0

    4.1

    3.5

    2.2

    Source: GAO review of 2004 annual progress and services reports.

    aThe states included in each category are listed in appendix I. Category I
    includes states with the highest densities of American Indians in their
    populations, while category IV includes states with the lowest densities.

    The range of ICWA information included in the annual progress and services
    reports may also be related to how closely ACF regional staff review
    states' activities for information related to ICWA implementation. ACF's
    regional offices are responsible for reviewing the ICWA information that
    states report in their 5-year plans and in their annual progress and
    services reports to ensure that states have followed ACF guidance,
    including whether they contain information on how tribes or tribal
    organizations were consulted in the development of these documents. If
    information initially submitted by states about their consultation with
    tribes or efforts to comply with ICWA is lacking or unclear, regional
    officials said they generally require states to provide additional
    clarification concerning their ICWA activities prior to approving the
    state's 5-year plan or annual progress reports. Four regions had a staff
    member designated as the tribal liaison for the region (two others
    designated a tribal liaison during the course of our review). ACF staff in
    some regions reported conducting some additional oversight activities with
    regard to ICWA or tribal issues. In one ACF region with 69 tribes, the
    tribal child welfare specialist told us that she checked the policy and
    procedures manuals for each state to ensure that they included guidance on
    following ICWA. In another region with some tribes but relatively few
    children subject to ICWA, the tribal program specialist has sponsored
    several ICWA training sessions for state child welfare and judicial staff,
    in part because of continued resistance to ICWA on the part of some state
    child welfare and judicial staff. In other regions, ACF staff reported
    relying on reviews

    of states' plans and annual progress reports, with no additional
    monitoring activities.

    ACF's Child and Family Services Reviews Do Not Focus on ICWA and Do Not
    Ensure That States Address ICWA Problems

    The structure of ACF's CFSR reviews of states' overall child welfare
    systems does not ensure that ICWA issues will be addressed in the various
    aspects of the review itself or that identified problems will be addressed
    and monitored in states' program improvement plans. Information about
    states' ICWA efforts may be obtained in three different parts of the
    review process:

    o  	In the CFSR statewide assessment process: A state must discuss how
    effective it has been in implementing ICWA.

    o  	In interviews with stakeholders by the CFSR review team: These
    interviews may discuss how the child welfare agency complies with ICWA
    provisions concerning notification of tribes, observing placement
    preferences, and working with tribes and courts concerning decisions for
    American Indian children in foster care.

    o  	As part of the onsite review of child welfare case files: The review
    determines if the case involves an American Indian child and if so, will
    then determine if (1) the state notified the tribe of the child's
    placement in a timely manner and (2) the child was placed with extended
    family or with an American Indian family.

    Our review of the self-assessments submitted by 51 states showed that all
    but 2 states addressed their efforts to implement ICWA, but the submitted
    information was somewhat limited to assess states' performance. One state,
    for example, noted that it had American Indian children in state custody,
    but did not discuss any ICWA compliance measures. In general, states with
    higher concentrations of American Indians were more likely to discuss a
    greater number of ICWA implementation efforts in their statewide
    assessments.

    Our review of CFSR final reports disclosed that 32 of 51 state reports
    raised some concerns about ICWA implementation, as shown in table 10. CFSR
    reports for 10 states-generally those with low densities of American
    Indians-had no discussion of ICWA implementation. Concerns raised in the
    reports included inadequate training of state social workers, shortages of
    American Indian homes for foster and adoptive placements, and
    identification and notification issues. For example, the Alaska CFSR final
    report notes that stakeholders commented on the lack of sufficient

    tribal involvement in ICWA training, despite a 5-year emphasis on this
    training. The Arizona report noted that compliance with ICWA is not always
    consistent with the intent or spirit of the law from district to district,
    and that efforts are not made to determine the applicability of ICWA in
    all cases. Similarly, in the Nevada report, some stakeholders expressed
    concern that some judges in the state do not follow the provisions of
    ICWA. In Utah, reviewers noted that stakeholders expressed different
    opinions about the consistency with which caseworkers identified American
    Indian children and notified tribes when these children are in state
    custody. Montana's report stated that stakeholders noted that the child
    welfare agency is in need of American Indian foster homes, but does not do
    any specific recruiting for these homes.

    Table 10: ICWA Concerns Raised in CFSR Final Reports and Program
    Improvement Plans by State Tribal population ICWA discussed in ICWA
    implementation concerns

    ICWA concerns in CFSR density category State final CFSR report? raised in final
                             CFSR report? addressed in PIP?

                          Alaska      Y            Y                 Y
                         Arizona      Y            Y                 N
                 Idaho                Y            Y                 Y
                       Minnesota      Y            Y                 N
                         Montana      Y            Y                 N
                      New Mexico      Y            N                NA
                    North Dakota      Y            Y                 N
                        Oklahoma      Y            Y                 Y
                          Oregon      Y            N                NA
                    South Dakota      Y            Y                 Y
                      Washington      Y            Y                 Y
                         Wyoming      Y            Y                 Y
                      California      Y            N                NA
                        Colorado      Y            Y                 N
                          Kansas      Y            N                NA
                 Maine                Y            Y                 Y
                        Michigan      Y            Y                 N
                     Mississippi      Y            Y                Not receivedb
                        Nebraska      Y            Y                 Y
                          Nevada      Y            Y                 N
                  North Carolina      Y            N                NA
                    Rhode Island      Y            Y                Not receivedb
                 Utah                 Y            Y                 Y

    Tribal population ICWA discussed in

                   ICWA implementation concerns ICWA concerns in CFSR

    density category State final CFSR report?

                     raised in final CFSR report? addressed in PIP?

                           Wisconsin      Y          Y                Y
                  Alabama                 Y          N               NA
                         Connecticut      Y          N               NA
                  Florida                 Y          Y                N
                   Iowa                   Y          Y                Y
                  Indiana                NA          N               NA
                           Louisiana      Y          Y                N
                       Massachusetts      Y          Y                N
                            New York      Y          Y                N
                      South Carolina      Y          Yc              NA
                   Texas                  Y          Y                N
                            Arkansas      Y          Y                Y
                            Delaware     Na          N               NA
                District of Columbia      N          N               NA
                  Georgia                Na          N               NA
                  Hawaii                 Na          N               NA
                 Illinois                 Y          Y              Not receivedb
                            Kentucky     Na          N               NA

    Maryland Y Y Not receivedb
    Missouri Y Y Y
    New Hampshire N N NA
    New Jersey Y N NA
    Ohio Y Y Y
    Pennsylvania Y Y Y
    Tennessee Y N NA
    Vermont Na N NA
    Virginia Na N NA
    West Virginia Na N NA

    Source: GAO review of Child and Family Services Review final reports and
    available state program improvement plans.

    aOnly ICWA related statement was that the state has no federally
    recognized tribes.

    bACF had not provided GAO with approved plan as of December 31, 2004.

    cReport notes that concern was resolved.

    The CFSR process is not designed to ensure that these types of ICWA
    problems are addressed. ACF requires states to develop program improvement
    plans to address problems identified during the CFSR process,
    specifically, areas in which ACF determines that the state is not in

    compliance with the CFSR standards. An issue can be discussed in the CFSR
    report without ACF necessarily finding that the state was not in
    compliance with these standards. The goal of the CFSR is for states to
    address the most pressing problems that are contributing to poor outcomes
    for children. ACF does not specifically review or rate ICWA implementation
    as part of the CFSR process; instead, ICWA issues are formally addressed
    as part of the CFSR measure relating to preserving family relationships
    and community connections. If a state is able to pass this overall measure
    based on performance on other aspects of the measure, ACF would not
    generally require states to address ICWA implementation issues in their
    program improvement plan. For example, Michigan's CFSR final report noted
    that the state did not have enough Native American foster homes and that
    the procedures used to identify Native American children and notify tribes
    were insufficient. However, because the "preserving connections" factor
    was assessed as a strength, the state did not discuss any specific
    corrective actions concerning identification of American Indian children,
    notification of tribes, or recruitment of Native American foster homes.

    While states may voluntarily address ICWA implementation issues in their
    program improvement plans, our review of 47 approved plans provided to us
    by ACF as of December 2004 showed that states did not always identify
    corrective actions they would take to improve ICWA compliance. As shown in
    table 10, 12 of the 32 states with ICWA implementation concerns identified
    during the CFSR did not report plans to address ICWA implementation
    problems in their program improvement plans.

    Similarly, the reviews of case files during the CFSR do not ensure that
    ICWA implementation is reviewed because cases involving American Indian
    children are not always included. During CFSR onsite visits, ACF requires
    officials to visit three sites in a state and randomly select a total of
    50 case files for their review. During these case reviews, if a child
    appears to have American Indian heritage, the CFSR reviewers are then to
    determine if the tribe was notified and if the child was placed with the
    tribe or extended family. Under this methodology, states with fewer
    children subject to ICWA in the child welfare system are less likely to
    have an ICWA case selected for review of their compliance with the law. In
    some states, however, sites where tribes were located were intentionally
    selected to increase the probability that cases involving American Indian
    children would be selected for review.

    The limited information gathered from the case file reviews may not
    accurately reflect a state's implementation of ICWA. In the CFSRs
    conducted from 2002 to 2004,13 ACF's review of 72 cases involving American
    Indian children in foster care showed that states often did not implement
    one or more ICWA provisions, but whether these children were actually
    subject to ICWA is unknown. As shown in table 11, CFSR reviewers concluded
    that the child's tribe was not notified in over onefourth of the cases
    reviewed and the child was not placed with a relative or the tribe over
    one-half of the time. The reviewers made these determinations for all
    American Indian cases reviewed, whether or not the children were subject
    to ICWA. Most of the states that had cases with identified ICWA issues did
    include efforts to improve ICWA implementation in their improvement plans,
    including four of the states with the highest concentrations of America
    Indians.

    13ACF does not have case specific data on tribal notification and
    placement for cases involving American Indian children for CFSRs completed
    in 2001.

    Table 11: Review of Tribal Notification and Placements in Cases Involving
    American Indian Children during Child and Family Services Reviews,
    2002-2004

                               Number of                             If tribe not
                                 cases                                notified or
                               reviewed    Cases where Cases where child not
                               involving                 child was placed with
         Tribal                 American child's tribe was not        relative or
    population                 Indian placed with                  tribe, ICWA
        density      State     childrena  not notified relative or issues in PIP?
        category                                             tribe
                     Alaska           16                       2 9       Y
                     Idaho             6                       1 1       Y
                    Montana           13                       3 5       N
                    Oklahoma           3                       0 0 Not applicable
                   Washington          5                       1 3       Y
                    Wyoming            4                       3 3       Y
                   California          1                       0 1       Y
                    Colorado           1                       0 0 Not applicable
                    Michigan           1                       0 0 Not applicable
                  Mississippi          2                       2 2    PIP not
                                                                      received
                    Nebraska           2                       1 1       Y
                     Nevada            1                       0 1       N
                  Rhode Island         1                       1 1    PIP not
                                                                      received
                      Utah             4                       0 2       Y
                   Wisconsin           3                       2 1       Y
                  Connecticut          1                       0 0 Not applicable

                                      Iowa 20 1 Y

          Hawaii                1             1             1          N
         Maryland               1             1             1    PIP not received
         Missouri               2             1             2          Y
           Ohio                 2             1             2          Y
          Total       72 (100%)    20 (27.8%)      37 (51.4%)

    Source: GAO review of state program improvement plans and data provided by
    James Bell Associates, which is under contract with ACF to compile Child
    and Family Services Review results.

    Notes: ACF does not have case specific data on tribal notification and
    placement for cases involving American Indian children for CFSRs completed
    in 2001.

    These cases involve American Indian children who may or may not be
    formally subject to ICWA.

    aIncludes children who are part American Indian.

    The case review questions involving tribal notification and placement are
    included as part of the CFSR's assessment of how well the state preserves
    the child's connections with family members and the child's community.
    Based on the responses to these and other questions, ACF rates the area
    either as a strength, as needing improvement, or not applicable. Of the

    2,600 total case files ACF reviewed during the CFSRs conducted from 2001
    through 2004, 87 cases from 20 states involved children who were American
    Indian as shown in table 12. The CFSR reviewers judged 23 of the 87 cases
    as needing improvement with regard to preserving a child's connections in
    half of these states. While most of the states that had cases rated as
    needing improvement addressed ICWA implementation issues in their program
    improvement plans, two states having higher concentrations of American
    Indians did not report any planned corrective action.

    Table 12: American Indian CFSR Cases Where Item Related to Preserving a
    Child's Connections Was Judged "Needing Improvement" During Child and
    Family Services Reviews, 2001-2004

                                       American Indian CFSR  If case(s) needing
                                      American cases rated    improvement, ICWA
                                             needing
                                                Indian CFSR implementation issues
    Tribal population                     improvement in                    in
                                                 preserving
    density category     State     cases revieweda a             PIP?
                                      child's connections
                            Alaska                     14 4           Y
                            Idaho                       5 0           -
                          Minnesota                    10 1           N
                           Montana                     10 2           Y
                         North Dakota                   2 0           -
                          New Mexico                    4 0           -
                            Oregon                      2 0           -
                         South Dakota                  21 6           Y
                          Washington                    1 0           -
                           Wyoming                      2 1           Y
                            Maine                       1 0           -
                           Michigan                     1 0           -
                           Nebraska                     2 1           Y
                             Utah                       2 0           -
                          Wisconsin                     3 3           N
                             Iowa                       1 0           -

                             Louisiana           1                  1           Y
              IV             Arkansas            2                  2           Y
                             Missouri            1                  0           -
                               Ohio              2                  2           Y
            Total               20               87                23

    Sources: James Bell Associates and GAO review of state program improvement
    plans.

                   aDoes not include children of "two or more races."

    Conclusions

    ICWA created 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.

    Recommendation for Executive Action

    Agency Comments and Our Evaluation

    To improve the usefulness of the information states are required to
    provide on their ICWA compliance efforts, the Secretary of HHS should
    direct the head of ACF 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 CFSRs, annual progress and services reports, and
    program improvement plans to target guidance and assistance to states in
    addressing any identified issues.

    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'
    implementation 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

                           Appendix I: Scope and Methodology

    We used several different methodologies to examine the factors influencing
    placement decisions for children subject to ICWA, the foster care
    experiences of these children compared to those of other children, and
    federal oversight of states' implementation of ICWA. Specifically, we
    collected information by:

    o  	Analyzing data from states with information systems that could
    identify children subject to ICWA;

    o  Surveying state child welfare officials through a web-based
    questionnaire;

    o  Conducting site visits to five states;

    o  Interviewing ACF and BIA central office and regional officials;

    o  Reviewing applicable laws and regulations;

    o  	Reviewing 2004 Annual Progress and Services Reports for 50 states and
    the District of Columbia;

    o  	Reviewing final CFSR reports for all states and the District of
    Columbia and Program Improvement Plans for 47 states; and

    o  	Soliciting input from federally recognized tribes by conducting tribal
    panels, interviewing regional intertribal organizations, and sending
    letters to federally recognized tribes requesting their input.

    While our report focused on children involuntarily removed from their home
    and placed in state foster care due to abuse or neglect, we also gathered
    some limited information about how ICWA is implemented with regard to
    children who are voluntarily relinquished by their parents for adoption.
    In addition to discussing voluntary adoptions with tribal officials we
    interviewed, we interviewed officials at nine private adoption agencies
    that handle ICWA cases in the states we visited, interviewed attorneys
    with the American Academy of Adoption Attorneys (AAAA), and communicated
    with six other AAAA members who responded to our email on the AAAA
    listserv regarding private adoptions.

    We conducted our review between December 2003 and January 2005 in
    accordance with generally accepted government auditing standards.

    Data on Children Subject To compare the experiences of children subject to
    ICWA with those of

    to ICWA	other children in foster care, we reviewed data from HHS' AFCARS
    database for federal fiscal years 2000-2003 to determine whether these
    data on American Indian children would be appropriate for the purposes of
    our review. However, these information systems do not collect data
    specifically on children subject to ICWA; instead, they only require
    states to report on the race and ethnicity of children in foster
    care-including American Indian/Alaskan Native-but not all American Indian
    children are

    Appendix I: Scope and Methodology

    subject to ICWA. Furthermore, previous GAO work indicates that the race
    data reported in AFCARS are not always accurate.1 As a result, we were
    unable to use these data to learn about the foster care experiences of
    children subject to ICWA. However, we did use AFCARS data for background
    information on American Indian children in foster care.

    We then surveyed all 50 states and the District of Columbia to determine
    which states collected automated data on children subject to ICWA in
    fiscal year 2003. Only five states-Oklahoma, Oregon, Rhode Island, South
    Dakota, and Washington-were able to provide these data. Because so few
    children subject to ICWA left foster care in Rhode Island in fiscal year
    2003, however, we are not reporting these data as they may not be
    representative of the experiences of children subject to ICWA in the
    state. We shared our analyses of the state data with each state to verify
    their accuracy. When appropriate, we adjusted the data to reflect comments
    from the states. We tested the data for statistical significance using the
    chi square test and only reported differences between groups that were
    statistically significant at the 95 percent confidence level.

    The data provided by the four states have several limitations. Three of
    the states were unable to determine the ethnicity or ICWA status for all
    children who exited foster care in 2003. Table 13 shows that, except for
    Oregon, the number of unidentified children represented less than 5
    percent of the total children exiting foster care in these states.
    Generally, states were able to provide the length of stay, number of
    placements, or exit destinations for children with known racial or ICWA
    characteristics who exited care in fiscal year 2003. When this did not
    occur, the unknown percentage for a specific group rarely exceeded 1
    percent of those exiting care. The unknown percentages were higher in a
    few cases. For example, Oregon could not identify the exit destination for
    4 percent of Caucasian children, 5 percent of other minority children, and
    3 percent of children subject to ICWA.

    1GAO, Child Welfare: Most States Are Developing Statewide Information
    Systems, but the Reliability of Child Welfare Data Could Be Improved,
    GAO-03-809 (Washington, D.C.: July 31, 2003).

                           Appendix I: Scope and Methodology

    Table 13: Number and Percentage of Children with Unknown Ethnicity Who
    Exited Care in FY 2003 for Four States

                  Number of children who exited foster care in FY 2003

                                                          Ethnicity not
                                                          specified/ICWA
           States        ICWA    Caucasian      Minority  status unknown    Total
        South Dakota     592        401              117                2   1,112
         Percentage      53.2       36.1            10.5       0.2
         Washington      169       3,856           2,183       109          6,317
         Percentage      2.7        61.0            34.6       1.7
           Oregon        214       2,638             965       655          4,472
         Percentage      4.8        59.0            21.6       14.7
          Oklahoma      1,534      3,224           1,732                0   6,490
         Percentage      23.6       49.7            26.7       0.0

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

    Note: Numbers may not add to 100 percent due to rounding.

    In addition, the data from Washington includes only children who are
    subject to ICWA and who are in state custody. In contrast, the data from
    Oregon, Oklahoma, and South Dakota include some children who are in the
    custody of a tribal court. All three states had some tribal Title IV-E
    agreements in 2003 and, as a result, children who are in tribal custody
    and whose tribe has a Title IV-E agreement with the state are included in
    the state's data. In addition, the South Dakota data also include some
    children who are in the custody of a tribal court, but for whom the state
    provides services and supervision.

    Survey of State Child Welfare Officials

    To obtain information on states' ICWA policies and procedures and their
    experiences with children subject to ICWA, we surveyed all 50 states and
    the District of Columbia using a web-based survey. To ensure the relevance
    and appropriateness of the survey questions and to test that they were
    consistently and reliably interpreted before they were administered, we
    pre-tested the survey instrument in Idaho, Oklahoma, Ohio, and Utah and
    received input from the Association on American Indian Affairs, Casey
    Family Programs, and the National Indian Child Welfare Association. In May
    2004, we e-mailed a notification to the child welfare director in each
    state, alerting them that a survey was forthcoming. This notification was
    followed by our e-mail to the directors containing the web link to the
    survey and a unique user identification and password to access the survey.
    To encourage as many states as possible to complete the survey, we

                           Appendix I: Scope and Methodology

    conducted follow-up calls to states that did not respond to our survey by
    the initial deadline.

    We received responses from 47 states and the District of Columbia; we did
    not receive responses from Kentucky, Hawaii, and Minnesota. However, many
    states were unable to respond to all of our survey questions and
    frequently responded that they did not know the answer or that the data
    requested was not available at the state level. The majority of states (28
    of the 48) reported that their survey responses were for all American
    Indian children involved in the child welfare system, without regard to
    ICWA status. Two states reported that their responses were based on the
    state, rather than federal, definition of who is subject to ICWA. Only 14
    states reported that their survey responses were for children who are
    subject to the federal law. We did not independently verify any
    information obtained through the survey. However, we conducted logic tests
    for certain responses to corroborate the consistency of responses within a
    state and contacted individual states to clarify all identified
    inconsistencies. The results we report for states that provided responses
    to our survey questions cannot be generalized to nonresponding states. In
    many cases, less than 50 percent of the states that completed the survey
    responded to an individual question, meaning that results could change to
    the extent that nonresponding states differed from those that responded.

    State Categorizations by We analyzed data according to the density of the
    tribal population in each

    Tribal Population 	state to determine the extent to which state responses
    or data findings were correlated with tribal density. As shown in table
    14, these categories take into account the tribal population of a state as
    estimated by the Census and the tribal population within the state
    eligible for BIA services.

    Appendix I: Scope and Methodology

    Table 14: Criteria for Determining States' Tribal Population Density
    Categories

                            Category Criteria No. of states

                  I >1% Tribal enrollment density or >1% population eligible
                                                     for BIA services density  12
                 II                        0.1% -1% Tribal enrollment density  12
                III                       0% - 0.1% Tribal enrollment density  10
                 IV   0% Tribal enrollment density and 0% population eligible
                                                     for BIA services density  17

    Source: 2001 Census estimates and BIA data on the percentage of people
    within each state who are (1) enrolled in a tribe or (2) eligible for BIA
    services.

    Notes: Indiana was placed in category III; although it had 0 percent
    tribal enrollment, it had a 0.1 percent population eligible for services.
    None of the other category II or III states had 0 percent tribal
    enrollment.

    To be eligible for BIA services, an individual must be a member of a
    federally recognized tribe or possess one-half or more American Indian
    blood quantum from a tribe indigenous to the United States.

    Each of the 50 states and District of Columbia was assigned to one of four
    population density categories, as shown in table 15. These categories
    allow us to factor in both individuals who self-identify as possessing
    American Indian heritage and individuals who are tribal members or have
    blood ties to a tribe. The categories were based on the maximum of either
    tribal population density or density of those eligible for services.
    Density was calculated as a percentage of state population (estimated by
    the Census Bureau).

    Category I includes states that have the greatest tribal population
    density or population eligible for BIA services. States placed in Category
    I had tribal enrollment densities or population eligible for BIA services
    densities that exceeded 1 percent. States in categories II and III have
    between 0 and 1 percent tribal population in their states, while category
    IV consists of states that have no tribal population and no population
    eligible for BIA services.

                           Appendix I: Scope and Methodology

              Table 15: Tribal Population Density Categorization by State

                                 2001 Total tribal 2001 Total population eligible
    Category      State      enrollment density       for BIA services density
                     Alaska                  18.88                          21.38
                    Arizona                   4.78
                     Idaho                    0.77
                   Minnesota                  1.04
                    Montana                   7.02
                  North Dakota                8.74
                   New Mexico                 8.95
                    Oklahoma                 18.19                          13.26
                     Oregon                   0.59
                  South Dakota               14.14                          12.56
                   Washington                 0.81
                    Wyoming                   2.13
          II       California                 0.15                           0.17
                    Colorado                  0.08
                     Kansas                   0.36
                     Maine                    0.57
                    Michigan                  0.52                           0.27
                  Mississippi                 0.31                           0.29
                 North Carolina               0.15                           0.09
                    Nebraska                  0.84                           0.45
                     Nevada                   0.65                           0.58
                  Rhode Island                0.25                           0.25
                      Utah                    0.66                           0.52
                   Wisconsin                  0.98                           0.63
          III       Alabama                   0.05                           0.05
                  Connecticut                 0.06                           0.06
                    Florida                   0.02                           0.02
                      Iowa                    0.04                           0.05
                    Indiana                   0.00                           0.01
                   Louisiana                  0.06                           0.02
                 Massachusetts                0.02                           0.00
                    New York                  0.10                           0.10
                 South Carolina               0.06                           0.04

                           Appendix I: Scope and Methodology

                                      2001 Total tribal     2001 Total population
                                                                         eligible
    Category        State         enrollment density  for BIA services density
                       Texas                       0.01                      0.01
          IV          Arkansas                     0.00                      0.00
                District of Columbia               0.00
                      Delaware                     0.00
                      Georgia                      0.00
                       Hawaii                      0.00
                      Illinois                     0.00
                      Kentucky                     0.00
                      Maryland                     0.00
                      Missouri                     0.00
                   New Hampshire                   0.00
                     New Jersey                    0.00
                        Ohio                       0.00
                    Pennsylvania                   0.00
                     Tennessee                     0.00
                      Virginia                     0.00
                      Vermont                      0.00

                                   West Virginia 0.00

    Source: 2001 Census estimates based on 2000 Census data and BIA data on
    the percentage of people within each state who are (1) enrolled in a tribe
    or (2) eligible for BIA services.

    Site Visit to States 	To obtain a more detailed understanding of how
    states implement ICWA, we conducted site visits to California, Oklahoma,
    Oregon, Rhode Island, and South Dakota. We selected states based on
    geographic diversity, the nature of state-tribal relations, the number of
    federally recognized tribes, and the size of the American Indian
    population. During our site visits, we interviewed state and local child
    welfare staff, tribal officials from at least two federally recognized
    tribes in each state (except in Rhode Island, which has only one federally
    recognized tribe), state court judges, and representatives from private
    adoption agencies that handle ICWA cases. We collected and reviewed
    relevant documentation from these site visits. In addition, we spoke with
    a variety of people in the child welfare field about their knowledge of
    the effect of states' implementation of ICWA on children subject to the
    law, including academic researchers, attorneys, child welfare advocates,
    and a state court judge from Utah.

    Federal Oversight 	To learn about the federal government's role in
    overseeing states' implementation of ICWA, we examined relevant federal
    regulations and

                           Appendix I: Scope and Methodology

    guidelines, as well as ACF's program instructions to states and tribes
    related to ICWA. We interviewed officials from ACF's central office and
    all 10 of its regional offices. We also interviewed officials from BIA's
    central office and social workers from 8 of its regional offices. To
    examine the extent to which states report their progress in implementing
    ICWA to ACF, we also reviewed excerpts of the 2004 Annual Progress and
    Services Reports states submitted to ACF covering their ICWA compliance
    activities during federal fiscal years 2000-2004 for all 50 states and the
    District of Columbia.

    To determine the extent to which the CFSRs evaluated ICWA activities in
    the states, we reviewed final CFSR reports for all 50 states and the
    District of Columbia. We also reviewed Program Improvement Plans from 47
    states to determine the extent to which states attempted to correct ICWA
    weaknesses surfaced in the CFSR final reports.

    Tribes and Tribal Organizations Contacted

    During the course of this review, we communicated with 161 tribes and 20
    tribal organizations about states' implementation of ICWA. We visited
    officials from 10 tribes as part of our site visits and spoke with
    representatives from 87 tribes and tribal organizations at multiple panel
    discussions we conducted at American Indian conferences and site visits
    (the number of tribes that participated in the panels may be undercounted
    because some participants did not sign in). We held two panel discussions
    during our site visit to Oklahoma in March 2004 at Norman and Tulsa; three
    panel discussions at the National Indian Child Welfare Association
    conference in April 2004 at Denver, Colorado; two panel discussions at the
    California State ICWA Conference in June 2004 at Lakeside, California; and
    two panel discussions at the National Congress of American Indians 2004
    Mid-Year Session in June 2004 at Uncasville, Connecticut. In addition, we
    collaborated with 9 regional intertribal organizations to organize
    telephone conferences, during which we spoke to representatives from 44
    tribes.

    To ensure the receipt of sufficient tribal input, we sent a letter in July
    2004 to 591 federally recognized tribal governments, informing them of our
    review and requesting their input. Representatives from 74 tribes and 5
    tribal organizations called, wrote, or e-mailed us in response to this
    letter. We asked tribes to respond to four questions: (1) In general, how
    well does your state implement ICWA and how frequently do problematic
    situations arise? (2) What benefits does ICWA provide to Indian children
    in state custody in terms of safety, permanency, and well-being and in
    what ways, if any, does ICWA delay or hinder your state's ability to keep
    Indian

    Appendix I: Scope and Methodology

    children safe and to place them in permanent homes in a timely manner? (3)
    Are there any challenges that exist to the effective implementation of
    ICWA and do you have any suggestions for federal action that could improve
    the placement of Indian children in permanent homes in a more timely
    manner? (4) Is there any other information you would like to provide about
    your tribe's experiences with ICWA? Because we did not specify a
    particular format for tribes to use, the responses we received varied in
    length, type, and content.

    Following are the names of the tribes and tribal organizations with whom
    we had contact through our site visits, tribal panels, telephone
    conferences, or our letter asking for tribal input.

    Tribes

    Absentee-Shawnee Tribe of Indians of Oklahoma
    Agua Caliente Band of Cahuilla Indians of the Agua Caliente Indian

    Reservation, California Apache Tribe of Oklahoma Arapahoe Tribe of the
    Wind River Reservation, Wyoming Asa'carsarmiut Tribe, Alaska Assiniboine
    and Sioux Tribes of the Fort Peck Indian Reservation,

    Montana Bay Mills Indian Community, Michigan Bear River Band of the
    Rohnerville Rancheria, California Berry Creek Rancheria of Maidu Indians
    of California Big Lagoon Rancheria, California Blackfeet Tribe of the
    Blackfeet Indian Reservation of Montana Burns Paiute Tribe of the Burns
    Paiute Indian Colony of Oregon Caddo Nation of Oklahoma Central Council of
    the Tlingit & Haida Indian Tribes, Alaska Cher-Ae Heights Indian Community
    of the Trinidad Rancheria, California Cherokee Nation, Oklahoma Chevak
    Native Village, Alaska Cheyenne River Sioux Tribe of the Cheyenne River
    Reservation,

    South Dakota Cheyenne-Arapaho Tribes of Oklahoma Chickaloon Native
    Village, Alaska Chickasaw Nation, Oklahoma Chilkat Indian Village
    (Klukwan), Alaska Chippewa-Cree Indians of the Rocky Boy's Reservation,
    Montana Chitimacha Tribe of Louisiana Citizen Potawatomi Nation, Oklahoma
    Cocopah Tribe of Arizona

    Appendix I: Scope and Methodology

    Coeur D'Alene Tribe of the Coeur D'Alene Reservation, Idaho
    Comanche Nation, Oklahoma
    Confederated Salish & Kootenai Tribes of the Flathead Reservation,

    Montana
    Confederated Tribes and Bands of the Yakama Nation, Washington
    Confederated Tribes of the Chehalis Reservation, Washington
    Confederated Tribes of the Colville Reservation, Washington
    Confederated Tribes of the Grand Ronde Community of Oregon
    Confederated Tribes of the Siletz Reservation, Oregon
    Confederated Tribes of the Umatilla Reservation, Oregon
    Cowlitz Indian Tribe, Washington
    Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota
    Crow Tribe of Montana
    Delaware Nation, Oklahoma
    Dry Creek Rancheria of Pomo Indians of California
    Eastern Pequot Tribal Nation, Connecticut (Not a federally

    recognized tribe) Fort Belknap Indian Community of the Fort Belknap
    Reservation of Montana Fort McDermitt Paiute and Shoshone Tribes of the
    Fort McDermitt

    Indian Reservation, Nevada and Oregon Fort McDowell Yavapai Nation,
    Arizona Fort Mojave Indian Tribe of Arizona, California & Nevada Galena
    Village (aka Louden Village), Alaska Gila River Indian Community of the
    Gila River Indian Reservation, Arizona Gulkana Village, Alaska Havasupai
    Tribe of the Havasupai Reservation, Arizona Houlton Band of Maliseet
    Indians of Maine Hualapai Indian Tribe of the Hualapai Indian Reservation,
    Arizona Ione Band of Miwok Indians of California Jamestown S'Klallam Tribe
    of Washington Karuk Tribe of California Kickapoo Tribe of Oklahoma Kiowa
    Indian Tribe of Oklahoma Klamath Indian Tribe of Oregon La Jolla Band of
    Luiseno Mission Indians of the La Jolla Reservation,

    California La Posta Band of Diegueno Mission Indians of the La Posta
    Indian

    Reservation, California Lac Courte Oreilles Band of Lake Superior Chippewa
    Indians of Wisconsin Lac du Flambeau Band of Lake Superior Chippewa
    Indians of the Lac

    du Flambeau Reservation of Wisconsin Little Traverse Bay Band of Odawa
    Indians, Michigan

    Appendix I: Scope and Methodology

    Lumbee-Cheraw Tribe of North Carolina (Not a federally

    recognized tribe) Makah Indian Tribe of the Makah Indian Reservation,
    Washington Match-e-be-nash-she-wish Band of Pottawatomi Indians of
    Michigan Menominee Indian Tribe of Wisconsin Metlakatla Indian Community,
    Annette Island Reserve, Alaska Miami Tribe of Oklahoma Minnesota Chippewa
    Tribe, Minnesota (Leech Lake Band) Minnesota Chippewa Tribe, Minnesota
    (White Earth Band) Mooretown Rancheria of Maidu Indians of California
    Morongo Band of Cahuilla Mission Indians of the Morongo

    Reservation, California Muckleshoot Indian Tribe of the Muckleshoot
    Reservation, Washington Muscogee (Creek) Nation, Oklahoma Narragansett
    Indian Tribe of Rhode Island Native Village of Ambler, Alaska Native
    Village of Buckland, Alaska Native Village of Eyak (Cordova), Alaska
    Native Village of Kiana, Alaska Native Village of Kivalina, Alaska Native
    Village of Kotzebue, Alaska Native Village of Koyuk, Alaska Native Village
    of Kwinhagak (aka Quinhagak), Alaska Native Village of Larsen Bay, Alaska
    Native Village of Mekoryuk, Alaska Native Village of Noatak, Alaska Native
    Village of Port Graham, Alaska Native Village of Port Lions, Alaska Native
    Village of Ruby, Alaska Native Village of Selawik, Alaska Native Village
    of Tanacross, Alaska Native Village of Tazlina, Alaska Native Village of
    Unalakleet, Alaska Native Village of Venetie Tribal Government (Artic
    Village

    and Native Village of Venetie), Alaska Navajo Nation, Arizona, New Mexico
    & Utah Newhalen Village, Alaska Nez Perce Tribe of Idaho Ninilchik
    Village, Alaska Nisqually Indian Tribe of the Nisqually Reservation,
    Washington Noorvik Native Community, Alaska Oneida Nation of New York
    Oneida Tribe of Indians of Wisconsin

    Appendix I: Scope and Methodology

    Organized Village of Kwethluk, Alaska
    Osage Tribe, Oklahoma
    Otoe-Missouria Tribe of Indians, Oklahoma
    Paiute-Shoshone Tribe of the Fallon Reservation and Colony, Nevada
    Pala Band of Luiseno Mission Indians of the Pala Reservation, California
    Pascua Yaqui Tribe of Arizona
    Passamaquoddy Tribe of Maine
    Pawnee Nation of Oklahoma
    Penobscot Tribe of Maine
    Pokagon Band of Potawatomi Indians, Michigan and Indiana
    Ponca Tribe of Nebraska
    Pueblo of Acoma, New Mexico
    Pueblo of Laguna, New Mexico
    Pueblo of San Juan, New Mexico
    Quapaw Tribe of Indians, Oklahoma
    Quechan Tribe of the Fort Yuma Indian Reservation, California & Arizona
    Quinault Tribe of the Quinault Reservation, Washington
    Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin
    Reno-Sparks Indian Colony, Nevada
    Rincon Band of Luiseno Mission Indians of the Rincon Reservation,

    California
    Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota
    Sac & Fox Nation, Oklahoma
    Saginaw Chippewa Indian Tribe of Michigan
    Salt River Pima-Maricopa Indian Community of the Salt River

    Reservation, Arizona
    Samish Indian Tribe, Washington
    San Carlos Apache Tribe of the San Carlos Reservation, Arizona
    Santa Ysabel Band of Diegueno Mission Indians of the Santa

    Ysabel Reservation, California
    Santee Sioux Nation, Nebraska
    Schaghticoke Tribal Nation, Connecticut (Not a federally recognized tribe)
    Seminole Nation of Oklahoma
    Shingle Springs Band of Miwok Indians, Shingle Springs

    Rancheria (Verona Tract), California
    Shoalwater Bay Tribe of the Shoalwater Bay Indian

    Reservation, Washington
    Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho
    Smith River Rancheria, California
    St. Regis Band of Mohawk Indians of New York
    Standing Rock Sioux Tribe of North & South Dakota
    Stockbridge Munsee Community, Wisconsin
    Suquamish Indian Tribe of the Port Madison Reservation, Washington

                           Appendix I: Scope and Methodology

    Three Affiliated Tribes of the Fort Berthold Reservation, North Dakota
    Tohono O'odham Nation of Arizona
    Tulalip Tribes of the Tulalip Reservation, Washington
    United Keetoowah Band of Cherokee Indians in Oklahoma
    Upper Sioux Community, Minnesota
    Ute Mountain Tribe of the Ute Mountain Reservation, Colorado,

    New Mexico & Utah
    Village of Crooked Creek, Alaska
    Village of Dot Lake, Alaska
    Village of Kalskag, Alaska
    Village of Old Harbor, Alaska
    Wampanoag Tribe of Gay Head (Aquinnah) of Massachusetts
    Washoe Tribe of Nevada & California (Carson Colony,

    Dresslerville Colony, Woodfords Community, Stewart Community,

    & Washoe Ranches)
    White Mountain Apache Tribe of the Fort Apache Reservation, Arizona
    Wichita and Affiliated Tribes (Wichita, Keechi, Waco &

    Tawakonie), Oklahoma
    Winnebago Tribe of Nebraska
    Wyandotte Nation, Oklahoma
    Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona
    Yerington Paiute Tribe of the Yerington Colony & Campbell

    Ranch, Nevada
    Ysleta Del Sur Pueblo of Texas
    Yupiit of Andreafski, Alaska
    Yurok Tribe of the Yurok Reservation, California

                                  Tribal Organizations

    Affiliated Tribes of Northwest Indians
    Alaska Inter-Tribal Council
    Aleutian/Pribilof Islands Association
    All Indian Pueblo Council
    Association of Village Council Presidents, Inc.
    California Tribal TANF Partnership
    Great Lakes Intertribal Council
    Inter Tribal Council of Arizona, Inc.
    Inter-Tribal Council of Nevada
    Kodiak Area Native Association
    Maniilaq Association
    Midwest Alliance of Sovereign Tribes
    Montana-Wyoming Tribal Leaders Council
    National Indian Child Welfare Association
    Southern California Indian Center

                           Appendix I: Scope and Methodology

    Tanana Chiefs Conference
    Two Feathers Native American Family Services
    United South and Eastern Tribes, Inc.
    United Tribes Technical College
    Urban American Indian Involvement, Inc.

    Appendix II: Children Exiting Foster Care in Four States, FY 2003

    Figure 16: FY 2003 Foster Care Exits in South Dakota

    Percent of children exiting care 80

    69

    70

    60

    50

    40

    30

    20

    10

    0 Reunification Adoption Guardianship Emancipation Living with Transfer to
    Runaway relatives another agency

    Type of exits

    ICWA Caucasian Minority Source: Data provided by the state child welfare
    agency in South Dakota.

    Note: South Dakota was not able to identify the race or ethnicity for all
    children who exited foster care. The percentage of children with unknown
    ethnicity who exited foster care in fiscal year 2003 was less than 0.2
    percent.

           Appendix II: Children Exiting Foster Care in Four States, FY 2003

    Figure 17: FY 2003 Foster Care Exits in Washington

    Percent of children exiting care 80

    70

    64 63

    60

    50

    40

    30

    20

    10

    0

    Reunification Adoption Guardianship Emancipation Living with Transfer to
    Runaway relatives another agency

    Type of exits

    ICWA

    Caucasian

    Minority

    Source: Data provided by the state child welfare agency in Washington.

    Note: Washington was not able to identify the race or ethnicity for all
    children who exited foster care. The percentage of children with unknown
    ethnicity who exited foster care in fiscal year 2003 was 1.7 percent.

    Appendix II: Children Exiting Foster Care in Four States, FY 2003

    Figure 18: FY 2003 Foster Care Exits in Oregon

    Percent of children exiting care 80 70 60 50 40 30 20 10 0

    69

    Reunification Adoption Guardianship Emancipation Living with Transfer to
    Runaway relatives another agency

    Type of exits

    ICWA

    Caucasian

    Minority

    Source: Data provided by the state child welfare agency in Oregon.

    Note: Oregon was not able to identify the race or ethnicity for all
    children exiting foster care. The percentage of children with unknown
    ethnicity who exited foster care in fiscal year 2003 was 14.7 percent.

    Appendix II: Children Exiting Foster Care in Four States, FY 2003

    Figure 19: FY 2003 Foster Care Exits in Oklahoma

    Percent of children exiting care 80

    70

    65

    60

    50

    40

    30

    20

    10

    0

    Reunification Adoption Guardianship Emancipation Living with Transfer to
    Runaway relatives another agency

    Type of exits

    ICWA Caucasian Minority

          Source: Data provided by the state child welfare agency in Oklahoma.

                Note: Totals may not add to 100 percent due to rounding.

    Appendix III: Comments from the Department of Health and Human Services

    Appendix III: Comments from the Department of Health and Human Services

    Appendix III: Comments from the Department of Health and Human Services

    Appendix IV: Comments from the Department of the Interior

    Appendix V: GAO Contacts and Acknowledgments

    GAO Contacts Acknowledgments

    (130329)

    Lacinda Ayers (206) 654-5591 Michelle St. Pierre (617) 788-0558

    In addition to those named above, Jerry Aiken, Elizabeth Caplick, Shirley
    Hwang, and Bob Sampson made key contributions to this report. Carolyn
    Boyce, Corinna Nicolaou, and Diana Pietrowiak provided key technical
    assistance; Daniel Schwimer provided legal assistance.

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