Wednesday, April 17, 2013

Indian Child Welfare Act…Allows for cultural identity or just plain wrong?

> A few days ago, I came across a Washington Post article about a pending SCOTUS case Adoptive Couple v. Baby Girl. In the case, the child is being contested by her biological father versus the couple that adopted her. Her father contends that on the bases of the Indian Child Welfare Act (ICWA), his rights as the father cannot be diminished by a non-Indian family. For some background, I include the blurb below…I’ll meet you after the jump.

The Indian Child Welfare Act (ICWA) is a federal law that seeks to keep American Indian children with American Indian families. Congress passed ICWA in 1978 in response to the alarmingly high number of Indian children being removed from their homes by both public and private agencies. The intent of Congress under ICWA was to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families" (25 U.S.C. § 1902). ICWA sets federal requirements that apply to state child custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe. (Source:

Basically, Baby Girl’s was conceived by a Hispanic Mother and a father, who until recently realized he was officially Cherokee, was considered non-Indian. Anyhoo, her biological dad is Indian. Her parents were engaged, found out she was coming, broke up, dad said he wanted no rights via text message (really?), mom sought an adoption agency, found adoptive parents (the plaintiffs), gave the baby up, and kept on moving. Her father signed said adoption papers under the pretense, false or uninformed as it was, that he was surrendering rights to the biological mother…he wasn’t. Lo and behold, he ships off to fight for the Army, returns only to realize that his kid isn’t with his ex. He fights to obtain his parental rights back, realizes he is Indian (thereby can invoke ICWA), and gets his kid back.

Therein lays the crux of the issue: can the biological dad sue for parental rights if he in fact relinquished them? Also, can said father also invoke an act to prevent the dissemination of Indian culture through the mass adoption of Indian children to non-Indian families?
According to the plaintiffs, “Congress could not have wanted the law to be interpreted as putting the interests of the father and the tribe ahead of the child simply because of her race.” The adoptive parents go on to say that “She deserves to be treated as a unique, multiethnic individual whose best interests are not inexorably dictated by her blood connection to a tribal member”.
According to tribes and states…the dad is entitled to his child. The severed bond between father of Indian descent and his child would thereby delineate the passage of culture because that child could or in fact be a member of a federally recognized tribe.

Here is why I’m posting this – this case represents a rock and a hard place. This child, BG, is being well cared for with her biological dad, who I’m assuming will introduce this child to the culture that belongs to their Tribe (in this case the Cherokee Nation). Not once in the brief or the arguments stated publicly has anyone said that this child is in danger because she is with her father. So child endangerment is out the window. This is now a case about bond of parentage. Again, hard to decipher. Adoption is a hard thing – you put yourself out there hoping that the someday, a person or agency will accept you to care for a child. There is always a chance that you won’t get a child, you’ll get a child with special needs, the birth parents don’t want go through it, or you get the child but the process isn’t finalized because of birth parents have second thoughts. I get it more so than you think. I’m more willing to take a child that isn’t mine biologically because I know there are situations and issues that no child should face.

Got it. Moving on.

Now here is the reality. The kid should stay with her biological dad. The bond between parents, biological or adoptive, is strong but should never be broken but so is cultural identity. Did the adoptive parents say that they would honor BG’s culture by bring her back to her native Oklahoma for events, ceremonies, and the like? BG is also Hispanic, would her parents do that for her as well – explain where her mom came from and let her or take her to visit her mother’s country? No. I applaud the efforts of her adoptive parents; I don’t think their arguments against the ICWA as it stands now would allow them to take this child away for a second time.

ICWA was passed for a reason. There have been thousands of documented cases of malfeasance by the government (Federal and states alike) that took children out of homes of Indian family members in favor of group homes. The most recent case was last year in AA’s home state of South Dakota where the state was accused of taking hundreds of millions of dollars in favor of sending Indian children to state run group homes or foster care facilities instead of collaborating with tribes and sending kids to Indian family members. It is harsh and many believe ICWA is a racist law. It is not. If you read some of the responses to the SD case, many of the adults who were taken by the state as children stated that it took them a long time to realize their cultural identity, many fell into addiction and had no anchor to the land or their Tribe. I would rather this child know where she came from and who she is now rather than guessing 20 years from now.

Pictures and quotes courtesy of the Washington Post. Additional resources from Wikipedia and NPR.

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