Sense of Belonging: Kinship, Companionship, Community, and Gender Identity in Foster Care

NOTE – It is necessary, now, to make a correction of an error in this post, and to better fit these posts up with a bit more vocabulary to enhance understanding of gender issues in foster care generally. Repeatedly throughout this post, I used the term transgender and gender nonconforming (TGNC) to refer to children and adults who are not cisgender. Cisgender [PDF pg. 1], according to the American Psychological Associations’ “Guidelines for Psychological Practice with Transgender and Gender Nonconforming People” is an “adjective used to describe a person whose gender identity and gender expression align with sex assigned at birth; a person who is not TGNC.” The issue with the TGNC terminology is that it is, in and of itself, exclusionary. A better terminology would be trans and gender non-binary (TGNB) because it fundamentally recognizes that gender is a spectrum, rather than a binary state.

As stated in my last post, transgender and gender non-conforming youth face unique and grave challenges in the foster care system. At its core, the fundamental risk faced by trans and gender non-binary (TGNB) youth is that they will suffer mistreatment, due to prejudice or indifference, in the care of non-specialized group homes—group homes that, as a result of the federal and state reforms seeking to move away from such institutions, will lack specially trained staff and targeted programming. This change means that TGNB youth will either be in group homes that don’t address their needs or be isolated in resource homes that also lack specialized training and programming.

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A Historical Context to the Indian Child Welfare Act

When Congress enacted the Indian Child Welfare Act, 25 U.S.C. § 1901-63, it was in response to an extraordinary number of Indian—that is, Native American—children who were removed from their homes and placed in homes that did not reflect their heritage. The National Indian Child Welfare Association estimates that in 1978, when ICWA was enacted, 85 percent of the Native American children taken out of their homes were placed in non-Native homes—even when relatives were able and willing to care for them—and even today, 56 percent of Native children are adopted outside of their homes and communities. (A more in-depth introduction can be found here.) The question remains—for some at least—whether it is necessary even today.

Terminology and Cultural Sensitivity

As a threshold issue, I would like to address the terminology I will be using. Historically, Native Americans in laws and policy—both federal and state—have been referred to as Indian and Indian tribes. Subsequently, in 2016, President Barack Obama signed a bill that changed all references to American Indian to Native Americans in federal law. ICWA, however, is still referred to as the “Indian Child Welfare Act”—using old terminology—in both the statute and in secondary articles and references. As such, when I talk about the statute, I will continue to refer to it as ICWA, using terminology that may be outdated.

Furthermore, while the United States government has classified Native Americans as a separate group—and certainly, the people and tribes who were here before European colonizers are distinct from all other racial and ethnic groups in the United States—it would be inaccurate to classify Native Americans as one racial or ethnic group. ICWA itself includes Indian children from federally recognized tribes (there are currently 573, and only these are eligible for those benefits under federal and state law) and some from Alaskan Native villages, which are considered a separate but similar group. Without getting too far down an unrelated path, the “Native American identity” is one that is far from singular.

Persons who would fit within a Native American or Indian identity by the United States government have chosen to identify themselves with a variety of terms, including First Nations, Native Americans, or their specific tribe itself. However, in order to prevent confusion, and, because this is meant to be a law and policy post, I will use the term Native American to refer to any child who fits within the definition of a child to whom ICWA can apply, and to those tribes that are federally recognized. (Those definitions can be found here, at 25 U.S.C. 1903(3) to (8).)

A Historical Backdrop

The United States certainly has a history of discrimination against Native Americans, and it is not limited to just the foster care system. Native American tribes have been systemically relegated to a second-class position, killed off, and had their lands taken away from them.

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