Protecting Indigenous children: 3 lessons Australia could learn from the United States

By Dr Paul Gray, Executive Leader of Strategy, Policy and Engagement at AbSec

AbSec was privileged to host Dr Sarah Kastelic, Executive Director of the United States’ National Indian Child Welfare Association (NICWA), who recently joined us for a workshop to share knowledge between our countries.

NICWA is similar in mission to AbSec, the peak body for Aboriginal children and families in the Australian state of New South Wales (as well as SNAICC, the Australian national peak body). We want to see our young people secure in their Indigenous identity, spiritually strong and safe at home with their families, communities and culture.

In both the USA and Australia, our Indigenous children are more likely to be removed from their families and communities by child protection authorities. In the US, Native American children make up more than half of all people under 18 in care; while in Australia, Aboriginal and Torres Strait Islander children are more than 10 times more likely to be placed in care than non-Indigenous young people.

A key goal for both NICWA and AbSec is to support our children and strengthen our families, ensuring that our next generations reach their full potential. For this to happen, we believe it’s crucial for our children to grow up in their own supportive communities and connected to their culture.

This shared mission reflects the similar challenges that our communities face. We both continue to struggle against colonisation, including the forced removal of Indigenous children from their families, communities and culture, and the ongoing impacts of these processes on our families and communities today. Indigenous communities in both the United States and Australia recognise that a child and family system oriented towards the removal of children from their family and community is destined to fail the very children it is obligated to protect.

In both countries, state authorities privilege non-Indigenous knowledge and expertise, and impose these ways of being on Indigenous children and families, marginalising the knowledge and expertise of peoples who have been caring for our children for thousands of generations. Too often, we must justify the enjoyment of our rights to the satisfaction of these external authorities. Critically, our communities are chronically underfunded to meet the needs of our families, with investment in Indigenous services only a fraction of our representation within state authorities.

Comparisons between our countries are particularly important at this time, given recent and ongoing reforms for out-of-home care permanency in NSW inspired by approaches in Illinois and New York. While the NSW Government takes inspiration from these approaches, it has not meaningfully engaged with the broader contextual differences between the American setting and the local one, or acknowledged specific protections that exist for Native American children which do not exist in Australia. Some of these protections are outlined below, along with recommendations for how they could be applied here in NSW.

The lessons:

1. Strengthen legislative protections to empower Aboriginal communities in the care and protection of Aboriginal children.

The Indian Child Welfare Act (ICWA) is a key piece of legislation in the USA that empowers Indigenous communities to fulfil their sacred responsibilities regarding their children.

While no piece of legislation is perfect, ICWA provides a clear framework for the relationship between tribes and statutory authorities with respect to the safety, welfare and wellbeing of Native children. These provisions mandate the involvement of the child’s community in all child protection decision-making, including making decisions through their own processes that are respected alongside state authorities, and holding state authorities accountable to their responsibility to proactively strengthen Indigenous families.

In New South Wales, while there are statutory obligations to promote Aboriginal self-determination and participation in child protection decision-making, there has been extremely limited implementation of these provisions. This could be strengthened by reflecting on some of the ICWA provisions, including the establishment of Aboriginal community-controlled decision-making processes that are respected by state authorities to consider decisions regarding Aboriginal children, as well as including minimum standards of actions that need to be demonstrated prior to child removal.

AbSec invites the government to work with us to strengthen the legislative mandate to empower Aboriginal communities in the care and protection of our children, finally realising the principle of Aboriginal self-determination in our child and family system.

2. Ensure state authorities are accountable to Indigenous children and families, in the clearest terms possible.

The ICWA includes clear provisions to hold state authorities accountable when engaging with American Indian and Alaska Native children and families. This includes mandated “active efforts”: actions that state authorities must take to strengthen families and address identified risks prior to removing children from their families.

Active efforts include conducting a comprehensive assessment of family circumstances including family strengths, identifying appropriate services for families, and actively assisting families to overcome barriers that may affect their access to needed supports. Child protective services must also search for and engage with the child’s extended family members to provide support if the child must be removed.

These provisions also incorporate processes that empower tribal authorities to actively engage with courts, joining as a party to matters involving their children or even dealing with matters through tribal processes such as transferring cases to tribal court. These steps ensure a much greater level of community oversight and accountability, consistent with the intimate knowledge that Indigenous communities have about the best interest of their children, than currently exists in NSW or nationally with respect to Australian Aboriginal children.

In NSW, AbSec is currently finalising an Aboriginal Case Management Policy and Guidelines document which will inform government and agencies’ efforts to protect Aboriginal children in the future. We’ve included the intent of active efforts within the draft document, which when completed, will provide clear guidance to case managers about their obligations to engage support services for Aboriginal children and work in partnership with families, kin and communities. Such guidelines for active efforts might likewise be a key feature of nationally consistent standards mentioned above.

However, such approaches are only meaningful if properly implemented. The absence of Aboriginal community oversight mechanisms continues to be a major issue in NSW and nationally. State and national peak bodies, including AbSec and SNAICC, have called for the establishment of appropriately empowered and resourced bodies in each state to provide community oversight for Aboriginal children and young people. In NSW, AbSec has called for the creation of an Aboriginal community-controlled statutory authority to provide this important function.

3. Achieve meaningful recognition for Indigenous groups and governments.

A key point of distinction between Australia and the United States is the greater authority and standing provided to tribal authorities, recognised as sovereign tribal governments in the US, in child and family welfare. Much of the capacity of tribal authorities has been established as a result of the ICWA and the amazing work of NICWA, but also reflects the legal standing afforded to tribes as a result of historic treaties.

To be clear, treaties are not a panacea, however agreement-making between state authorities and Aboriginal communities reflects a key element of genuine self-determination. It safeguards the rights of Aboriginal peoples, as well as practically delineating roles and responsibilities for the signatories that ultimately mean that children and families are better served. Self-determination was identified as a key building block of more effective services in the Bringing Them Home report, and in most if not all reviews and inquiries conducted since.

The NSW Government has a stated commitment to promoting the self-determination of Aboriginal communities through the whole-of-government OCHRE strategy. This is further supported through the Children and Young Persons (Care and Protection) Act 1998, which provides a statutory obligation to achieve as much self-determination as possible for Aboriginal communities within the child and family sector. However, these provisions are not adequately enacted.

Greater agreement-making is required, creating a distinct Aboriginal child and family system that empowers Aboriginal communities to build a better future for our children, families and communities. AbSec has established a broad framework for this approach, outlined in our Achieving a Holistic Aboriginal Child and Family Service System for NSW paper, and we continue to further articulate this model. We invite the NSW Government to join us in bringing these Aboriginal-led approaches to life.