Bill aims to keep American Indian children with families

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LINCOLN, NE — While applying for her driver's license at age 16, Karen Hardenbrook saw her birth certificate and learned what her adoptive parents from Broken Bow never told her: she was born in Winnebago and her mother was a member of the Omaha Tribe of Nebraska. As a baby, the state removed her from her biological grandmother's crowded home on the reservation.

Today Hardenbrook, 57, lives on the Omaha Reservation in Walthill. She's an enrolled member but at times still feels like an outsider.

"I had a wonderful, beautiful (adoptive) home. I couldn't have asked for anything more," Hardenbrook said. "But I still wish I would have never left the res. I would have learned to dance. I would have learned to sing the songs. Now when I get out to the arena, I have to watch everyone, at 57 years old, because I don't know the steps."

A bill slated for a committee vote this week in the Nebraska Legislature would further strengthen protections of cultural identities for children like Hardenbrook by engaging tribal government and extended family mediation before removing children from tribal homes.

In 1978, Congress passed the Indian Child Welfare Act in response to what it deemed "a crisis of massive proportions." Between 25 percent and 35 percent of American Indian children were living in out-of-home placement, endangering the preservation of already dwindling American Indian tribes.

The federal law created standards that encouraged states to recognize the interests of Indian families and tribal governments when handling child custody issues. Nebraska adopted a nearly identical version in 1985.

"As sovereign entities, when one-third of the population gets taken out of your community, you won't have a tribe much longer," said Robert McEwen, attorney for legal nonprofit Nebraska Appleseed.

American Indian children represent just 2 percent of Nebraska's children but account for more than 5 percent of all children in out-of-home placement, one of the highest disparities in the nation, according to 2014 data from Nebraska's Foster Care Review Office.

The bill by Sen. Colby Coash of Lincoln would explicitly define when social workers can remove Native American children from their homes, making it harder to separate families and break the cultural ties

Coash said Nebraska's 30-year-old child welfare laws are too hazy for courts and caseworkers to effectively implement the federal law. When children or one of their biological parents are tribe members, state and federal laws require social workers to make "active efforts" to keep Native American families together — but state law doesn't define "active efforts."

"The state has a responsibility to not only provide for safety, but to keep the cultural connections," Coash said.

Under the bill, caseworkers would first have to contact tribal leaders, consult with mediators and exhaust all family counseling and mediation options before forfeiting parental rights. The Department of Health and Human Services would have to document each step.

The bill also broadens the definition of "expert witnesses," who are required to testify in American Indian child custody cases.

Judi gaiashkibos, executive director of the Nebraska commission on Indian Affairs, said tribal culture and state standards often clash in the welfare system, contributing to high numbers of Native American foster children.

"A caseworker might say, 'That's too crowded, that's not a good thing for the family. The child might be better in this white family. They get their own bedroom and bathroom,'" gaiashkibos said. "But they're not with the people they look like, their family and their tribal family."

Only 135 of Nebraska's 2,663 licensed foster homes are recognized as Native American, according to a DHHS spokesman. Many children are placed with non-native families, effectively severing tribal ties, gaiashkibos said.

She acknowledged that in emergency situations, temporary out-of-home placement might be needed.

The bill specifies that if a child can't remain safely at home, custody preference should be given to a foster home or adoptive parents that can best preserve and grow a child's political, cultural and social relationship with his or her tribe.

The Department of Health and Human Services has not taken a position on the bill, a spokesman said.

The Judiciary Committee is expected to discuss advancing the bill on April 14, according to the Associated Press. The bill is LB566.