Defending the Indian Child Welfare Act

Shannon LC Cate — Sat, 20 Dec 2008 17:30:00 GMT

Image this scenario: a working-class, white, Methodist woman from Iowa named Fran with a serious drinking problem has lost her two children to foster care. Her cousin, who lives across town is raising them. Fran is unhappy to learn that she is pregnant with her third child. She does her best not to drink during the pregnancy but slips a few times. She decides she wants this child to have an entirely different life, so she goes to an adoption agency where she is told, a happy, healthy, middle-class Muslim couple who live in Cairo will raise her child with love and privilege. They fly her to Egypt and she gives birth. The next day, Fran signs away her rights to her child and is flown back to Iowa. In a couple of days, she realizes she has made a terrible mistake. She confesses the whole thing to her family, who, desperate to claim the child and bring her back to be raised among them, go to the State Department and cry foul. The State Department informs the Egyptian couple that they must return the baby to her extended family back in Iowa. No way, the couple insist, this is their baby.

Where should this child be raised? I think most of us would sympathize with Fran's family if not with Fran herself. I think most of us would agree that the child probably ought to be raised in Iowa, near her biological siblings, among extended family members in their faith and culture. And it is no small thing to add the possibility of at least knowing her mother, even if she never manages to improve her life enough to regain custody.

So why is it so horrifying that an Indian child should be claimed by his tribe on his reservation--a situation that is basically a small town and/or an extended family--to be raised in the traditions and culture and religion of that family, among people who share his race, with the possibility of a relationship--however imperfect--with his biological mother? The various tribes located within the United States are sovereign nations. When a child is placed outside the tribe in adoption, it is more like an international adoption than a domestic one. As those of you who've adopted internationally know, governments maintain various types of authority over whether and how native-born children can be adopted by foreigners. It stands to reason that the same principal is at work with the tribes. And it is. It's called the Indian Child Welfare Act and it was passed to protect the tribes from the unjust loss of their children.

There was good reason to feel special protection was needed. In the late nineteenth and early twentieth century, Indian children were routinely taken unwillingly from healthy families and placed in boarding schools or foster homes because the U.S. government wanted the next generation to be assimilated into white mainstream culture. The expressed goal was to cut off young people from their elders and break the passing of the culture from generation to generation.

The strategy worked quite well, and the tribes and their members have dwindled in numbers and well being to the point of utter physical impoverishment.

The ICWA was passed in the mid-1970's to try and regain some of the losses of those decades. It didn't just set up a race-matching program for Indian children in need of fostering and adoption, it gave power to the tribal authorities to decide how such children should be placed. It didn't ban whites from adopting Indian children, it simply put a careful process in place that made sure the default would always be that Indian authorities were responsible for Indian children, rather than white social workers grabbing children out of families that were doing well by Indian cultural standards. The ICWA requires that children be placed in foster and adoptive homes according to a hierarchy of 1. biological extended family 2. another family within the tribe 3. another family who are members of another Indian tribe and finally 4. a non-Indian family. The baby in this particular case did not follow that procedure, and his birth mother, feeling mistaken about her placement within days of signing her baby away (she signed only 24 hours after birth, remember), immediately went to the tribe for assistance in rectifying the situation. The prospective adoptive family was informed within a week of taking custody of the baby but refused to return him, forcing the tribe to go to court instead.

In her argument against ICWA, my colleague, Jeanne Sager, mentions that the law takes placement decisions away from parents. And it can do that. But in this case, it was the saving grace of a mother who was not given enough time to make a placement decision by allowing her to have the child placed elsewhere--in the custody of the tribe.

I know people who have planned adoptions that "fell through" when a birth mother changed her mind about her decision to place her baby. Sometimes, the prospective parents had not met the baby yet. Sometimes they had. Sometimes, they had taken the baby home. There are states in which a birth parent has up to 30 days to rescind a relinquishment. That is part of adoption. Adoptions are almost never overturned once finalized, but before they are finalized, the baby is essentially a foster child.

Whatever the flaws of the ICWA, it was a known factor to the prospective adoptive parents almost immediately. And the Act was invoked to give a mother who had been given barely a day to make the most critical decision of her life, a chance to reconsider where her baby best belonged. The media has not lived up to its responsibility in reporting this case. Not only was the baby not yet the "adopted" child of his prospective parents, those parents were told almost right away that the baby would need to be placed elsewhere. If they loved him as much as they claim, they ought to have given him back immediately, so that he might have had continuity of care with one family from as early an age as possible, rather than bonding with them, only to be torn away at six months old.

Sadly, they made a decision that hurt him and hurt them (and their older son, who lost a child he thought was going to be his brother). Similarly, when the prospective adoptive mother claims that losing him this way is wore than his death, (as she did in one report), I have to doubt her heart. Is this child's life truly irredeemable because he will grow up on the reservation with his tribe and quite possibly his biological extended family? Is that really worse than his death? I don't think so. But that is the very attitude that motivated the passing of the ICWA in the first place--the assumption that an Indian home would be automatically a bad home, that Indian culture was automatically inferior to European American culture. It's sad that such an attitude is alive and well today, and the fact that the ICWA took a child from a family with that attitude seems just about like perfect justice to me.

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Strollerderby : larson

Defending the Indian Child Welfare Act

Parents Must Give Adopted Son Back to Native American Mother