A recent and potentially precedent-setting case may impact some of the nation’s most vulnerable populations. The case involves an act that many people are unaware of—unless they are hopeful foster or adoptive parents. The Indian Child Welfare Act of 1798: foster and adoptive parents learn of it during training or hear it mentioned in court, especially at the beginning of a case. Depending on the area where you reside, it may never affect you, but it could. So what even is the Indian Child Welfare Act (ICWA), and what does it have to do with adoption? Actually, quite a lot.
For many years prior to the creation and institution of the ICWA in 1978, it is believed that perhaps a third of all Native children in the United States had been taken from their families and forced into boarding schools or placed with other (white) families. Why? For the express purpose of assimilating them to white American culture. As many as a third were dragged away from their families, from everything they knew, and told they were savages and worse. Then they were expected to behave as if they were “white.” Their hair was unbraided or cut. Girls were put in “modern” dresses, boys in slacks and shirts. Everyone was made to learn from books and understand etiquette. They were forced into unfamiliar situations and made to eat unfamiliar food. They were not returned to their families. Gross misinformation about Native culture was spread and hundreds of years of tribal knowledge that was passed from generation to generation could have been lost.
Due to these atrocities and others, in 1978 the ICWA went into law. Its intent was to protect Native families from the previous destruction and desecration. The act was meant to preserve heritage and protect the innocent. The basic idea behind it is as simple as it is complex. At the beginning of a court proceeding that involves any child being removed from his or her parents, the question is asked, “Is the child part of a Native tribe?” If the answer is no, court proceedings can go on as normal. Any foster parents that are available and suitable are found, the child goes into their foster home, and he or she may potentially be adopted by that family if the situation arises.
The complication begins when, in answer to the question, the child is found to have some Native affiliation. Due to the ICWA, if a child who is affiliated with a Native tribe is removed into foster care, every effort must be made to place that child with a native relative. If a relative cannot be found or is deemed unsuitable, then the child is to be sent to live within his or her tribe of origin. Only if the tribes withdraw their right to the child, or if no suitable alternative can be found, may a Native child be placed outside his or her heritage. However, this can bring some complications, as one might imagine.
I, for one, know many people who claim with pride to be “part Cherokee,” but upon taking a DNA test “just for fun,” they discover to their horror they are 100% colonial. So it can be imagined that people attempting to stall the adoption process could simply imply or state outright that they are tribe affiliated because it is something that is difficult to prove in some instances. For example, David Cornsilk, a Cherokee Nation member, historian, and genealogist, describes the phenomenon of fake tribes. These are tribes which are not legally recognized by the United State government in regards to Native benefits and laws (and would not, in fact, be protected under ICWA). They can be a group of people that just formed a club or a nationally recognized charity organization. Either way, they can be damaging. They dilute what it means to be a Native American and further spread misinformation.
Why do they do this? David Cornsilk believes that it is this: “They’re very unhappy with just being what they are and they’re fascinated by Native American culture. They all claim to be Cherokee; their great-great-grandmother was a Cherokee princess, and they outdo each other with their stories of having fabulous cultural knowledge handed down from generation to generation.” (Crawford, 2019) What it really is, however, is cultural appropriation. Many of these people have exactly zero native heritage and are just fascinated with what it “looks like” to be Native, unaware of the vast cultural implications of everything from a feather headdress to beading on a blanket. Or worse, they are hoping to stall out a court case that oftentimes protects their child from their dangerous or neglectful behavior. Children who are tribe affiliated have sometimes been in foster care for years before their tribe was prepared to take them. In that time, human emotions can become entangled, and the end result can be destructive for everyone.
The case in question is a suit being brought forth by several interested parties. They include families of children who would like the children to be adopted by non-natives, families who are the caretakers of Native children and are hoping to adopt, and others. The lawsuit, which may go to the Supreme Court, is not trying to fully overturn the law. It hopes to create some “wiggle room” to place children more quickly or more appropriately. The ruling is as follows: “The complex ruling from 16 judges of the 5th U.S. Circuit Court of Appeals upholds a lower court’s finding that the Indian Child Welfare Act’s preferences for American Indian families or licensed ’Indian foster homes’ violate constitutional equal protection requirements [emphasis mine].”
The argument is that insisting children be placed with tribal connections both slows down and unfairly ties the hands of state workers who are doing their best to find homes for children in need.
Native leaders are dissatisfied with the ruling. Their concern is that once one part of the code is overruled as unconstitutional, it will be easier for further degradation of their culture as a whole. The tribes depend on future generations to pass along knowledge of their heritage. There are some studies that show more Native children end up in foster care than Caucasian children. With greater numbers of children removed, their culture and all it entails could be completely wiped out in just a few generations. Ideas, crafts, and spiritual and medicinal ways that are older than the country we live in could disappear because of careless child welfare law adherence.
The counterargument is that it is unjust to take a beloved child from a family simply because they don’t share the same skin color or the same genealogical heritage. With a dramatic increase of families from all races adopting out of their race, it seems hypocritical to make an exception for Native children. Further, traumatizing emotional damage can occur if children are placed, in an emergency situation, in a non-Native foster home and end up there long term. Any resulting adoption can sometimes go all the way to court before anyone realizes a child has Native heritage. Months or years could go by while the appropriate channels are taken to find someone who is the same tribe. During that time, a child may develop a deep, secure attachment with their caregivers. The family in question may love and adore the child like one of their own while harboring anxiety that at any moment they could be taken away.
This has happened on more than one occasion. A fairly recent example of this occurred in 2016 when foster parents attempted to appeal a court’s decision in California. The court ultimately decided they would move a 6-year-old girl to her distant family in another state. The little girl was 16 months old when she was placed “temporarily” in the foster home. She remained there for over four years before the court ultimately ruled it would be in her best interest to move her to distant relatives in Utah. The foster family disagreed, but the court insisted that the law be upheld in this situation.
Another painful example of this law not working in the vulnerable party’s favor is the case Adoptive Parents vs Baby Girl. This case was also part of a media spectacle and really, nobody won. Baby Veronica was placed for adoption with a white couple. When the baby was 2 years old, her biological father wanted her to be his. He used the ICWA to persuade the court to get her. Baby Veronica, now 2 years old and having been in the care of her adoptive parents her whole life, was moved to her biological father’s home. The adoptive parents sought legal action because they loved their daughter and had adopted her legally. After two more years of legal battles, the little girl, now 4 years old, was court-ordered back to her adoptive family. The biological father fled the state and went to the Cherokee reservation where he proceeded to hide the child until a warrant was arranged and the child was found.
Eventually the girl was returned to her adoptive family. Who is to say that she is better off in either situation? Further, how was it possible that someone claiming only 1% Native heritage was able to gain enough foothold legally that he was allowed to intervene in an adoption? Typically speaking, adoptions are not able to be overturned unless there is gross negligence involved. The family, their lawyers, and the girl’s biological mother had done due diligence in tracking down the father. He was uninvolved until something piqued his interest. What caused his sudden interest? Regardless, one can hope Veronica is doing well with her family now.
Further, it can be difficult and tedious for already overworked and underpaid caseworkers and child welfare employees to track down and verify the Native status of a child. Tribes can be slower in responding than child protective agencies would wish. The Native tribe could reside primarily out of state and that could further complicate the placement. Child welfare law is (rightfully) complicated, and knowing the ins and outs of its workings can take a long time. Additionally, forgetting to check a box on a form can set an entire case back to the beginning. Our adoption of our (very Caucasian) children was set back two months because a wrong date was found on placement paperwork. Two months. For a date. I digress. With these complications, and the overwhelming stacks of folders that represent children in desperate need, it is no wonder that the people on the ground working would wish for a simpler resolution.
As this case passes up towards the Supreme Court, it will be interesting to see how it will continue to impact Native tribes and adoptive families alike. I cannot imagine dealing with the situation gracefully were I a Native. It seems like a violation to have children who are legally “yours” stolen from your ranks via a technicality. It also seems unfair to take a child from the only parents they have ever known to send them to family far away for the sake of them being “blood-related.” Some of my best family members aren’t blood-related and some of my blood-related family I have all but disowned. I am not a part of an oppressed group by any means, so there is a great possibility my read on this is not as compassionate as it ought to be. Hopefully it will work out for the children involved, though, no matter what happens.Are you considering placing a child for adoption? Not sure what to do next? First, know that you are not alone. Visit Adoption.org or call 1-800-ADOPT-98 to speak to one of our Options Counselors to get compassionate, nonjudgmental support. We are here to assist you in any way we can.