Judge William Thorne as told to Antoinette Robinson

Shortly after I started working as a tribal judge, one of my cases involved whether to remove children from their family. I didn’t know much about the child welfare system and I needed to do some research. But I also trusted that the child welfare system knew the answers. The more I researched, though, the more I learned that the system was broken.

Since the 1880s, the United States government has been removing Native American children at high rates. That’s when the Bureau of Indian Affairs began gathering Native American children up and taking them to boarding schools where the goal was to strip away the children’s Indian identity. Children could have their mouths washed out with soap for speaking their tribal language. Some of the welcoming speeches recorded from when students arrived at the schools include the words: “Let all that is Indian within you die.”

Children as young as 4 years old were taken to these schools. These were incredibly harsh places for children to be. The children had almost no contact with their families. In the first 40 years of these schools, almost half of the children died, sometimes from disease, sometimes from broken hearts. They’d just stop eating. Often families were never informed that their children had died. They just never heard from them again. Some of these schools continued to exist right up to the 1980s.

A Wave of Removals

The worst part is that generation after generation of Native American children never had a parent pick them up and comfort them when they were sad, or cheer for them when they did well. They learned to be parents from matrons in the dormitories. Then those children became parents. But it’s difficult to know how to hold a child if you’ve never been held. It’s difficult to know how to get down on the floor and play if it was never done with you.

Also, in the mid-1950s, the Child Welfare League of America and the Bureau of Indian Affairs started removing Indian children and placing them in non-Indian homes on charges of “neglect.” In Indian communities, older children are often responsible for taking care of younger children—3- and 4-year-olds might be in the care of 8- or 9-year-olds, but this became grounds for removal. By the early 1960s, 25-35% of all Native American children had been removed from their homes and put in foster or adoptive homes.

If the system had known what kind of home I grew up in, my brothers and sisters and I would have been removed. But if I’d been removed, I would have missed the opportunity to spend summers with my grandmother. My grandmother cooked on a wood stove. She had an outhouse, not a bathroom, and she didn’t have spare bedrooms for us to sleep in. But my grandmother made me feel special. If I had been removed from my home, I might never have had that opportunity, and I wouldn’t be who I am.

A Protective Law

In 1970, the United States Congress created the American Indian Policy Review Commission. It found that in some states Native American children were placed in foster care as much as 20 times more often than other children. That report was issued in 1977. In 1978, Congress passed the Indian Child Welfare Act (ICWA), which was an attempt to try to fix the problem.

ICWA requires child welfare systems to make “active efforts” to solve the problem before a child is removed. (In non-ICWA cases, the legal standard is lower—“reasonable efforts.”)

ICWA also gave preference to placing children with kin and moved some child welfare decisions back to tribal courts.

Change, But Not Enough

Now, 35 years later, fewer Native American children enter foster care. Some states have formed partnerships with tribes. In California, for instance, there is a good state judge-tribal judge partnership that meets together regularly to educate each other. In Utah and Washington states, cases involving Native American children are staffed together with both a state judge and a tribal judge. Some states also make an aggressive effort to place children with family whenever possible.

But we still see Native American children enter foster care in very high numbers. Nationally, a Native American child is 2½ times more likely to be in care than a non-Native child. In Minnesota, a Native American child is 14 times more likely to be in care.

In many places, the barriers to tribal court involvement are distance and inadequate funding—tribal courts are working with only about a quarter of the resources of state courts. And even though ICWA holds child welfare systems to a higher standard of “active efforts,” many states have found ways around that, because the federal government doesn’t regularly review whether states are in compliance with ICWA.

Too many people still believe they’re saving children when they go into a home and take children out without spending time understanding the family or whether problems can be fixed. And there is still a lot of resentment in the Native American community—a feeling that a lot of people are trying to get Indian children away from Indian families.

‘Is This Child Loved?’

As a judge, I’ve had to ask, “If these were my kids, would this plan be acceptable to me?” If each of us spent more time asking ourselves that question, I think we would do a much better job providing for other people’s children.

I believe the federal government ought to be tracking and publishing how often children from different racial and ethnic groups go into care. If communities knew the numbers, they’d know how bad it is and demand change.

I also think the federal government should penalize states for being out of compliance with ICWA. If states knew they could lose millions of dollars, they’d spend more time fixing the problems.

States should work with local tribes to provide training to help caseworkers understand tribal culture and history. I also believe there are too many formal licensing requirements when it comes to placing children with family. The questions we have to ask are: “Is this child loved and taken care of and safe?” Everything else—like how many rooms are in the house and whether the family members have met the official licensing standards—is a misdirection.

Fighting for Change

In the past two years, some tribes have been fighting for control over all child welfare decisions involving Native American children. In the past, federal foster care dollars (called Title IV-E funds) were not made available to tribes. Instead, it was up to individual states to decide how much to involve the tribes. Congress passed a correction to that two years ago, and there are now a couple of tribes that are receiving federal funds to run their own systems, with a handful of others being considered.

I believe the most important change the child welfare system has to make is to really understand that foster care is not neutral. Too often, the child welfare system acts like children are the equivalent of potted plants that you can move from a window sill in one house to another window sill in another house and they’ll do just fine. But kids don’t do that. What we know from brain science research is that the trauma of broken attachments can literally prevent children’s brains from growing, and if you miss that growth opportunity you can never go back and make that up.