Report to Congressional Requesters

United States Government Accountability Office

GAO

April 2005 INDIAN CHILD 

WELFARE ACT 

Existing Information 

on Implementation 

Issues Could Be Used 

to Target Guidance 

and Assistance to 

States 

GAO-05-290 
What GAO Found

United States Government Accountability Office

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

www.gao.gov/cgi-bin/getrpt?GAO-05-290.

To view the full product, including the scope 

and methodology, click on the link above. 

For more information, contact Cornelia Ashby 

at (202) 512-8403 or ashbyc@gao.gov. 

Highlights of GAO-05-290, a 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 

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 

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

Oregon South Dakota Washington

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

0

25

50

75

100

Oklahoma

ICWA

Caucasian

Minority

ICWA

Caucasian

Minority

ICWA

Caucasian

Minority

ICWA

Caucasian

Minority

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. 

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. 

What GAO Recommends

GAO recommends that the 

Department of Health and Human 

Services’ Administration for 

Children and Families (ACF) 

consider using ICWA compliance 

information available through its 

existing child welfare oversight 

activities to target guidance and 

assistance to states. HHS disagreed 

with our recommendation. We 

continue to believe that ACF could 

use the information it gathers to 

help states improve their ICWA 

compliance. 
Page i GAO-05-290 Indian Child Welfare Act 

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 61 

Appendix II Children Exiting Foster Care in Four States, 

FY 2003 75 

Appendix III Comments from the Department of Health and 

Human Services 79 

Appendix IV Comments from the Department of the Interior 82 

Appendix V GAO Contacts and Acknowledgments 83 

GAO Contacts 83 

Acknowledgments 83 

Tables 

Table 1: Main ICWA Provisions 7 

Contents 
Page ii GAO-05-290 Indian Child Welfare Act 

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 LongTerm 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 
Page iii GAO-05-290 Indian Child Welfare Act 

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 
Page iv GAO-05-290 Indian Child Welfare Act 

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 

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Page 1 GAO-05-290 Indian Child Welfare Act 

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 

United States Government Accountability Office

Washington, DC 20548 
Page 2 GAO-05-290 Indian Child Welfare Act 

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 
Page 3 GAO-05-290 Indian Child Welfare Act 

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. 

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 

Results in Brief 
Page 4 GAO-05-290 Indian Child Welfare Act 

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 
Page 5 GAO-05-290 Indian Child Welfare Act 

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. 
Page 6 GAO-05-290 Indian Child Welfare Act 

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. 

Background 
Page 7 GAO-05-290 Indian Child Welfare Act 

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. 

Placement preferencesa

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. 

a

States 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. § 1996b. 
Page 8 GAO-05-290 Indian Child Welfare Act 

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 

 Standard for Children Subject to ICWA Standard for Children Not Subject to ICWA 

To Prevent Break Up of Family 

and/or To Reunify Family 

ICWA requires states to make “active efforts” to 

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 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. 

To Terminate Parental Rights Termination of parental rights cannot be 

granted unless the evidence indicates beyond a 

reasonable doubt that continued custody is 

likely to result in serious damage to the 

American Indian child. 

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. 

While ICWA requires states to provide active efforts to reunify families, 

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 

Interaction of ICWA with 

ASFA 
Page 9 GAO-05-290 Indian Child Welfare Act 

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. 

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. 

ACF is responsible for the administration and oversight of federal funding 

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 

Key Participants in State 

Child Welfare Systems 

Federal Oversight of Child 

Welfare Programs 
Page 10 GAO-05-290 Indian Child Welfare Act 

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: 

• 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. 

• 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). 

• 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 

 1

See 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). 
Page 11 GAO-05-290 Indian Child Welfare Act 

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. 

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. 

American Indian 

Demographics and Tribal 

Membership Requirements 
Page 12 GAO-05-290 Indian Child Welfare Act 

Figure 1: American Indian Population Density by State 

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 

N.H.

Mass.

R.I.

Conn.

N.J.

Del.

Md.

D.C.

Hawaii

Vt.

Ala.

Ariz. Ark.

Calif.

Ga.

Ill. Ind.

Iowa

Kans.

La.

Maine

Mo.

Nebr.

N.Mex.

N.Y.

N.Dak. Oreg.

Pa.

Tex.

Wisc.

Fla.

Miss.

N.C.

Ohio

Okla.

S.Dak.

Wyo.

Alaska

Idaho

Mont.

Wash.

Nev.

Utah

Colo.

Mich.

Minn.

W.Va. Va. Ky.

0.4% - 1.3% (31 states)

1.4% - 3.0% (13 states)

3.1% - 9.0% (4 states)

9.1% - 19.0% (3 states)

Source: 2000 U.S. Census data. 

S.C.

Tenn.
Page 13 GAO-05-290 Indian Child Welfare Act 

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 

 2

However, 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. 
Page 14 GAO-05-290 Indian Child Welfare Act 

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. 
Page 15 GAO-05-290 Indian Child Welfare Act 

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 

of the Morongo Reservation (California) 

A 1/8 blood quantum and one parent 

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 

Reservation (South Dakota) 

A 1⁄4 blood quantum in a Sioux tribe and

some Crow Creek blood 

Rosebud Sioux Tribe of the Rosebud 

Indian Reservation (South Dakota) 

A 1⁄4 blood quantum in a Sioux tribe and

one parent is a member of the tribe 

Source: GAO interviews with tribal officials. 

a

Since 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. 
Page 16 GAO-05-290 Indian Child Welfare Act 

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. 

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 

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 

Identification of a Child’s 

ICWA Status Can Be 

Challenging and Can 

Influence Placement 

Decisions 
Page 17 GAO-05-290 Indian Child Welfare Act 

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. 
Page 18 GAO-05-290 Indian Child Welfare Act 

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 

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. 

0

2

4

6

8

10

12

14

Number of states

Source: GAO survey.

4

3

12

6

Extremely or

very often

Moderately

often

On occasion

Seldom, if

ever
Page 19 GAO-05-290 Indian Child Welfare Act 

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 

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 

0

1

2

3

4

5

6

7

8

9

Number of states

Source: GAO survey.

6

7

8

4

Very often

Moderately

often

On occasion

Seldom, if

ever

6 6

8

4

ICWA children

Non-ICWA children
Page 20 GAO-05-290 Indian Child Welfare Act 

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 
Page 21 GAO-05-290 Indian Child Welfare Act 

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. 

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 

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 
Page 22 GAO-05-290 Indian Child Welfare Act 

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. 
Page 23 GAO-05-290 Indian Child Welfare Act 

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 

home was not available

Foster home (of any 

background) was not available

Foster home was 

not available

Extremely often 2 0 0

Very often 8 3 2

Moderately often 5 3 6

On occasion 6 11 12

Seldom, if ever 2 8 6

Total states that could 

answer the question 23 25 26

Do not know or data not 

available 19 17 16

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. 
Page 24 GAO-05-290 Indian Child Welfare Act 

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 

or long-term guardianship 

home was not available

Adoptive or long-term 

guardianship home (of any 

background) was not available

Adoptive or long-term 

guardianship home 

was not available

Extremely often 2 0 0

Very often 4 1 1

Moderately often 8 7 8

On occasion 5 9 13

Seldom, if ever 4 7 5

Total states that could 

answer the question 

23 24 27

Do not know or data not 

available 

20 18 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 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 nonAmerican 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 

Decisions to Change a Child’s 

Placement 
Page 25 GAO-05-290 Indian Child Welfare Act 

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. 

 3

Urban Institute, The Continuing Evolution of State Kinship Care Policies (Washington, 

D.C., 2002). 
Page 26 GAO-05-290 Indian Child Welfare Act 

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 

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. 

0

2

4

6

8

10

12

Number of states

Source: GAO survey.

1

7

Extremely

often

Moderately

often

On occasion

Seldom, if

ever

9 9

ICWA children

Non-ICWA children

0 0

1

11
Page 27 GAO-05-290 Indian Child Welfare Act 

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 

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 

0

1

2

3

4

5

6

7

8

9

10

Number of states

Source: GAO survey.

1

5

9

4

Very often

Moderately

often

On occasion

Seldom, if

ever

0

7 7

5

ICWA children

Non-ICWA children
Page 28 GAO-05-290 Indian Child Welfare Act 

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 nonAmerican Indian foster home because the child had already bonded with 

the foster family. 

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 

Relationships with Tribes 

Can Affect Placement 

Decisions and How They 

Align with ASFA 

Provisions 

Tribal and State Relationships 
Page 29 GAO-05-290 Indian Child Welfare Act 

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 

 4

See 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). 

Tribal Cultural Beliefs and 

ASFA 
Page 30 GAO-05-290 Indian Child Welfare Act 

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 

child has been in foster care for 15 of the most recent 22 months.5

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. 

 5

See 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. 
Page 31 GAO-05-290 Indian Child Welfare Act 

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 

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 

Tribal and State Jurisdiction 

Decisions 

0

1

2

3

4

5

6

7

8

9

Number of states

Source: GAO survey.

5

7

3

Moderately

often

On occasion

Seldom, if

ever

5

8

2

ICWA children

Non-ICWA children
Page 32 GAO-05-290 Indian Child Welfare Act 

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 

Placement Decisions for 

Children Voluntarily 

Relinquished for Adoption 
Page 33 GAO-05-290 Indian Child Welfare Act 

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. 

Limited Data Show 

No Consistent 

Differences in Length 

of Stay or Other 

Foster Care 

Experiences for 

Children Subject to 

ICWA and Other 

Children 
Page 34 GAO-05-290 Indian Child Welfare Act 

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

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 

 6

Rhode 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. 

7

When 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. 

8

We 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. 

9

According 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. 

Data from the Four States 

and Survey Results Show 

Different Patterns in the 

Length of Time Children 

Subject to ICWA Stay in 

Foster Care 
Page 35 GAO-05-290 Indian Child Welfare Act 

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 

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. 

0

10

20

30

40

50

60

70

80

90

100

Percentage of children 

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

3 years or more

2 years - less than 3 years

Less than 2 years

ICWA

Caucasian

Minority

ICWA

Caucasian

Minority

ICWA

Caucasian

Minority

ICWA

Caucasian

Minority

Oklahoma Oregon South Dakota Washington
Page 36 GAO-05-290 Indian Child Welfare Act 

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 

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. 

2

7 3

4

About half

Most

Hardly any

Some

Source: GAO survey.
Page 37 GAO-05-290 Indian Child Welfare Act 

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 

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. 

1

1

3

2

No additional time

More than 6 months

5-6 months

1-2 months

Source: GAO survey.

3

Less than a month
Page 38 GAO-05-290 Indian Child Welfare Act 

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 

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 

0

2

4

6

8

10

12

14

16

18

Number of states

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.

17

16

At most 

somewhat 

increased

At least 

moderately 

increased

Amount of time increased

16

15

14

5

6

7

8

6
Page 39 GAO-05-290 Indian Child Welfare Act 

child welfare agencies and courts may use similar standards that apply to 

all children, despite differences outlined in the law. 

• 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. 

• 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. 
Page 40 GAO-05-290 Indian Child Welfare Act 

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 

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. 

0

2

4

6

8

10

12

14

Number of states

Source: GAO survey.

1

0

5

13

Very often

Moderately

often

On occasion

Seldom, if

ever

0

1

9 9

ICWA children

Non-ICWA children
Page 41 GAO-05-290 Indian Child Welfare Act 

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. 

Data from Four States 

Show Some Differences in 

How Children Subject to 

ICWA Move through Foster 

Care 
Page 42 GAO-05-290 Indian Child Welfare Act 

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

FY 2003 

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 

0

10

20

30

40

50

60

70

80

90

100

Percentage of children 

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

3 or more

2 or less

ICWA

Caucasian

Minority

ICWA

Caucasian

Minority

ICWA

Caucasian

Minority

Oregon South Dakota Washington
Page 43 GAO-05-290 Indian Child Welfare Act 

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 

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). 

0

10

20

30

40

50

60

70

80

90

100

Percent of children exiting care

ICWA

Caucasian

Other minority

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

58

61

Oklahoma Oregon South Dakota Washington

65

62 64

69

57

70

56

36

64 63
Page 44 GAO-05-290 Indian Child Welfare Act 

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 

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). 

0

5

10

15

20

25

Percent of children exiting care

ICWA

Caucasian

Other minority

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

17

19

Oklahoma Oregon South Dakota Washington

18

17

21

14 14

11

15

12

21

19
Page 45 GAO-05-290 Indian Child Welfare Act 

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 

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). 

0

5

10

15

20

25

Percent of children exiting care

ICWA

Caucasian

Other minority

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

7

8

Oklahoma Oregon South Dakota Washington

6

9

4

5

8

2

6

15

8

10
Page 46 GAO-05-290 Indian Child Welfare Act 

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 
Page 47 GAO-05-290 Indian Child Welfare Act 

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. 

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 

ACF Has Limited Oversight 

Authority and Some States 

Report Little Information 

on ICWA Implementation 
Page 48 GAO-05-290 Indian Child Welfare Act 

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 

Population 

Density 

Categorya

All 3 required 

areas addressed 

2 required areas 

addressed

1 required area 

addressed

Addressed ICWA 

compliance, but 

not any required 

areas explicitly

Did not 

address ICWA Total

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. 

a

Category 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. 

b

Approved 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). 
Page 49 GAO-05-290 Indian Child Welfare Act 

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 

Suggested ICWA Activities in ACF Guidance 

Number of 

states

Training programs for state employees 31

Forms/procedures that include tribal affiliation and notification 36

Development of state caseworker compliance expectations or 

measures 1

ICWA-related collaborations with local agencies to provide services 

to American Indian children 12

State partnership agreements with tribes 23

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. 

a

Other activities states reported include hiring ICWA specialists and holding ICWA conferences. 
Page 50 GAO-05-290 Indian Child Welfare Act 

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 

categorya

Average number of ICWA measures 

discussed in APSR

I 4.0

II 4.1

III 3.5

IV 2.2

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

a

The 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 
Page 51 GAO-05-290 Indian Child Welfare Act 

of states’ plans and annual progress reports, with no additional monitoring 

activities. 

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: 

• In the CFSR statewide assessment process: A state must discuss how 

effective it has been in implementing ICWA. 

• 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. 

• 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 

ACF’s Child and Family 

Services Reviews Do Not 

Focus on ICWA and Do 

Not Ensure That States 

Address ICWA Problems 
Page 52 GAO-05-290 Indian Child Welfare Act 

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 

density category State 

ICWA discussed in 

final CFSR report? 

ICWA implementation concerns 

raised in final CFSR report? 

ICWA concerns in CFSR 

addressed in PIP? 

I 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 

II 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 
Page 53 GAO-05-290 Indian Child Welfare Act 

Tribal population 

density category State 

ICWA discussed in 

final CFSR report? 

ICWA implementation concerns 

raised in final CFSR report? 

ICWA concerns in CFSR 

addressed in PIP? 

 Wisconsin Y Y Y 

III 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 

IV 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. 

a

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

b

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

c

Report 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 
Page 54 GAO-05-290 Indian Child Welfare Act 

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. 
Page 55 GAO-05-290 Indian Child Welfare Act 

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. 
Page 56 GAO-05-290 Indian Child Welfare Act 

Table 11: Review of Tribal Notification and Placements in Cases Involving American Indian Children during Child and Family 

Services Reviews, 2002-2004 

Tribal population 

density category State 

Number of cases 

reviewed involving 

American Indian 

childrena 

Cases where 

child’s tribe was 

not notified

Cases where child was 

not placed with 

relative or tribe 

If tribe not notified or 

child not placed with 

relative or tribe, ICWA 

issues in PIP? 

I 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 

II 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 

III Connecticut 1 0 0 Not applicable 

 Iowa 2 0 1 Y 

IV 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. 

a

Includes 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 
Page 57 GAO-05-290 Indian Child Welfare Act 

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 

Tribal population 

density category State 

American 

Indian CFSR 

cases revieweda

American Indian CFSR 

cases rated needing 

improvement in preserving 

a child’s connections 

If case(s) needing 

improvement, ICWA 

implementation issues in 

PIP? 

I 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 

II Maine 1 0 - 

 Michigan 1 0 - 

 Nebraska 2 1 Y 

 Utah 2 0 - 

 Wisconsin 3 3 N 

III 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. 

a

Does not include children of “two or more races.” 
Page 58 GAO-05-290 Indian Child Welfare Act 

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. 

Conclusions 
Page 59 GAO-05-290 Indian Child Welfare Act 

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 

Recommendation for 

Executive Action 

Agency Comments 

and Our Evaluation 
Page 60 GAO-05-290 Indian Child Welfare Act 

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 

Page 61 GAO-05-290 Indian Child Welfare Act 

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: 

• Analyzing data from states with information systems that could identify 

children subject to ICWA; 

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

• Conducting site visits to five states; 

• Interviewing ACF and BIA central office and regional officials; 

• Reviewing applicable laws and regulations; 

• Reviewing 2004 Annual Progress and Services Reports for 50 states and 

the District of Columbia; 

• Reviewing final CFSR reports for all states and the District of Columbia 

and Program Improvement Plans for 47 states; and 

• 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. 

To compare the experiences of children subject to ICWA with those of 

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 

Data on Children Subject 

to ICWA 
Appendix I: Scope and Methodology 

Page 62 GAO-05-290 Indian Child Welfare Act 

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. 

 1

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). 
Appendix I: Scope and Methodology 

Page 63 GAO-05-290 Indian Child Welfare Act 

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 

States ICWA Caucasian Minority

Ethnicity not 

specified/ICWA 

status unknown Total 

South Dakota 592 401 117 2 1,112

Percentage 53.2 36.1 10.5 0.2 100

Washington 169 3,856 2,183 109 6,317

Percentage 2.7 61.0 34.6 1.7 100

Oregon 214 2,638 965 655 4,472

Percentage 4.8 59.0 21.6 14.7 100

Oklahoma 1,534 3,224 1,732 0 6,490

Percentage 23.6 49.7 26.7 0.0 100

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. 

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 

Survey of State Child 

Welfare Officials 
Appendix I: Scope and Methodology 

Page 64 GAO-05-290 Indian Child Welfare Act 

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. 

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

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. 

State Categorizations by 

Tribal Population 
Appendix I: Scope and Methodology 

Page 65 GAO-05-290 Indian Child Welfare Act 

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 

Page 66 GAO-05-290 Indian Child Welfare Act 

Table 15: Tribal Population Density Categorization by State 

Category State 

2001 Total tribal 

enrollment density 

2001 Total population eligible 

for BIA services density

I Alaska 18.88 21.38

 Arizona 4.78 4.04

 Idaho 0.77 1.35

 Minnesota 1.04 0.69

 Montana 7.02 5.03

 North Dakota 8.74 5.43

 New Mexico 8.95 6.58

 Oklahoma 18.19 13.26

 Oregon 0.59 1.40

 South Dakota 14.14 12.56

 Washington 0.81 1.45

 Wyoming 2.13 2.19

II California 0.15 0.17

 Colorado 0.08 0.12

 Kansas 0.36 0.25

 Maine 0.57 0.26

 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 

Page 67 GAO-05-290 Indian Child Welfare Act 

Category State 

2001 Total tribal 

enrollment density 

2001 Total population eligible 

for BIA services density

 Texas 0.01 0.01

IV Arkansas 0.00 0.00

 District of Columbia 0.00 0.00

 Delaware 0.00 0.00

 Georgia 0.00 0.00

 Hawaii 0.00 0.00

 Illinois 0.00 0.00

 Kentucky 0.00 0.00

 Maryland 0.00 0.00

 Missouri 0.00 0.00

 New Hampshire 0.00 0.00

 New Jersey 0.00 0.00

 Ohio 0.00 0.00

 Pennsylvania 0.00 0.00

 Tennessee 0.00 0.00

 Virginia 0.00 0.00

 Vermont 0.00 0.00

 West Virginia 0.00 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. 

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. 

To learn about the federal government’s role in overseeing states’ 

implementation of ICWA, we examined relevant federal regulations and 

Site Visit to States 

Federal Oversight 
Appendix I: Scope and Methodology 

Page 68 GAO-05-290 Indian Child Welfare Act 

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. 

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 

Tribes and Tribal 

Organizations Contacted 
Appendix I: Scope and Methodology 

Page 69 GAO-05-290 Indian Child Welfare Act 

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. 

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 

Tribes 
Appendix I: Scope and Methodology 

Page 70 GAO-05-290 Indian Child Welfare Act 

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 

Page 71 GAO-05-290 Indian Child Welfare Act 

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 

Page 72 GAO-05-290 Indian Child Welfare Act 

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 

Page 73 GAO-05-290 Indian Child Welfare Act 

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 

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 

Tribal Organizations 
Appendix I: Scope and Methodology 

Page 74 GAO-05-290 Indian Child Welfare Act 

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 

Page 75 GAO-05-290 Indian Child Welfare Act 

Figure 16: FY 2003 Foster Care Exits 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 

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

0

10

20

30

40

50

60

70

80

Percent of children exiting care

Type of exits

Transfer to 

another agency

Living with Runaway

relatives

Reunification Adoption Guardianship Emancipation

57

69

56

14

11

15

8

2

6 4

8

3

6 6

2 0 1 0

11

2

18

ICWA

Caucasian

Minority
Appendix II: Children Exiting Foster Care in 

Four States, FY 2003 

Page 76 GAO-05-290 Indian Child Welfare Act 

Figure 17: FY 2003 Foster Care Exits 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. 

0

10

20

30

40

50

60

70

80

Percent of children exiting care

Type of exits

Transfer to 

another agency

Living with Runaway

relatives

Reunification Adoption Guardianship Emancipation

36

64 63

12

21 19

15

8 10 9

5 6

0 0 0 0 0 0

27

1 2

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

ICWA

Caucasian

Minority
Appendix II: Children Exiting Foster Care in 

Four States, FY 2003 

Page 77 GAO-05-290 Indian Child Welfare Act 

Figure 18: FY 2003 Foster Care Exits 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. 

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

0

10

20

30

40

50

60

70

80

Percent of children exiting care

Type of exits

Transfer to 

another agency

Living with Runaway

relatives

Reunification Adoption Guardianship Emancipation

62 64

69

17

21

14

9

4 5

3 5 5

0 1 2 2 2 2

6

3 3

ICWA

Caucasian

Minority
Appendix II: Children Exiting Foster Care in 

Four States, FY 2003 

Page 78 GAO-05-290 Indian Child Welfare Act 

Figure 19: FY 2003 Foster Care Exits in Oklahoma 

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

0

10

20

30

40

50

60

70

80

Percent of children exiting care

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

Type of exits

Transfer to 

another agency

Living with Runaway

relatives

Reunification Adoption Guardianship Emancipation

58

61

65

17 19 18

7 8 6 5 7 6 444

0 0 1

9

1 1

ICWA

Caucasian

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

Page 79 GAO-05-290 Indian Child Welfare Act 

Appendix III: Comments from the 

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

Page 80 GAO-05-290 Indian Child Welfare Act 
Appendix III: Comments from the Department of Health and Human Services 

Page 81 GAO-05-290 Indian Child Welfare Act 
Appendix IV: Comments from the Department 

of the Interior 

Page 82 GAO-05-290 Indian Child Welfare Act 

Appendix IV: Comments from the 

Department of the Interior 
Appendix V: GAO Contacts and 

Acknowledgments 

Page 83 GAO-05-290 Indian Child Welfare Act 

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. 

Appendix V: GAO Contacts and 

Acknowledgments 

GAO Contacts 

Acknowledgments 

(130329) 
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