Biden administration proposes rule to help Native American children in foster care

The Department of Health and Human Services announced on Feb. 22 that it has proposed a new federal rule that will require states to expand the data they collect relating to Native American children in foster care and adoption systems. The department said the information they currently receive is not adequate to ensure that enough children in the system are placed in homes reflecting their culture, as required by federal law.

“This proposed change goes beyond just collecting data. It will also move us a step closer to valuing the experiences of Native families and furthering our goals of keeping children in their homes and communities,” Secretary Xavier Becerra said in a statement.

The 1978 Indian Child Welfare Act was passed in response to adoption agencies and child welfare agencies separating Native American children from their families and communities and placing a majority of those children outside of Indigenous communities even when homes were available that were more compatible with their culture.

Jeff Hild, acting assistant secretary of the federal Administration for Children and Families, said gathering more data would help the government to develop policies that would preserve family structures and protect the cultural identity of children in the systems of foster care or adoption.

The rule will be subject to a period of public review and comment before it is officially adopted as federal policy.

The National Indian Child Welfare Association, a nonprofit that advocates for the rights of Native American children, praised the action from the Biden administration.

“NICWA is thrilled to see Indian Child Welfare Act data elements in the Adoption and Foster Care Analysis Reporting System Notice of Proposed Rulemaking announced by @HHSGov today,” the organization said in a Facebook post. “We strongly encourage tribes and other ICWA allies to submit comments in support of the proposed rule.”

According to a 2023 analysis from the research organization Child Trends, 36% of children in Montana’s foster care population are Native American; Native children make up just 9% of all children in the state. Among the eight states with the largest populations of Native American children, Montana is ranked fourth for the largest number of children in foster care.

The Montana Free Press reported that this data may undercount the children affected due to data gaps at the local, state and federal levels.

For decades, the U.S. government forcibly displaced Native Americans, taking their lands and placing children in schools and homes intended to erase their unique cultural identities and traditions. In 2009, President Barack Obama signed a defense appropriations bill with an amendment that stated that the U.S.  “apologizes on behalf of the people of the United States to all Native Peoples for the many instances of violence, maltreatment, and neglect inflicted on Native Peoples by citizens of the United States.”

Systemic racism against Indigenous Americans has led to health and wealth disparities that have persisted for years.

President Joe Biden has taken actions designed to address some of the issues faced by Indigenous communities, such as funding efforts to increase access to water and broadband internet in Native American areas.

In 2023, Biden signed an executive order making it easier for Native American tribes to get access to federal funds. The order instructed agencies to reform the distribution process so tribes and not federal agencies prioritize programs and services that need help.“

The actions we’re taking today are key steps into that new era of tribal sovereignty and self-determination — a new era, grounded in dignity and respect, that recognizes your fundamental right to govern and grow on your own terms,” Biden said in remarks at the White House Tribal Nations Summit held in Washington in December of that year.