ICWA and Indian Adoptions
You may be seeing news stories lately about ICWA and Indian adoptions, and wondering what this is about? ICWA is the Indian Child Welfare Act, and the furor is about the concerns of the Native people that children with eligibility should not be forced to lose their connections to their tribal affiliations because of adoption.
As most schoolchildren are now taught, (not so) long ago, many Native Americans were treated very poorly by the Anglo-Saxons who invaded this country and began to colonize it.
In the last century, children of native American descent were removed in record numbers from reservations and from their biological families. By some reports, 25-35 percent of Indian American children were separated from their parents, and three-fourths of them were placed with non-Indian families, causing irreparable losses to these children, their families and their tribes.
In 1978, a federal law was implemented, called the Indian Child Welfare Act, which essentially gave the tribes sovereignty in all child welfare matters involving children of Native American descent.
What ICWA typically meant to private adoption agencies like Abrazo was that anytime a prospective birthparent identified themself as being of American Indian descent, a whole different set of rules and procedures applied. The agency had to notify the tribe(s) that an adoption was being planned, and seek their approval for the placement in advance. Birthparents with verified Indian lineage had to complete relinquishment before a district judge, more than 10 days after birth, and their surrender decisions were revocable until the adoption had been legally-finalized by the adoptive family.
Some tribes, like the Cherokees, tended to be more generous in granting their blessing, provided that the adopting family agreed to raise the child to know and honor his or her Indian heritage. Other tribes, however, like the Choctaws, tended to be less cooperative and on occasion, Abrazo had to inform expectant mothers that the tribe would not consent to the adoption unless the mother were to place with a family living within its reservation, causing some to elect to parent, instead.
On a national level, this led to some well-publicized disputes, as would-be adopters sought to overrule tribal objections in costly legal battles, like the one involving Lexi Page, age 6 (the foster family lost) and Baby Veronica (the non-Indian adoptive family won) and Baby B (the Indian birthfather won.)
Some tribal registration requirements are based on what is called “minimum blood quantum,” while others are not, but as some proponents of the ICWA point out, the legislation is based on tribal membership, not nationality or race. As Chrissi Nimmo, the Cherokee Nation’s assistant attorney general stated, “just like all 50 states are able to have a say in the adoptions of their ‘citizen’ children, ICWA allows tribes, as governments, to have a say in the adoption of their ‘citizen’ children.”
About Indian adoptions
Human rights groups have long sounded the alarm about an adoption industry push to challenge ICWA, as groups like the Goldwater Institute have spent several years and millions of dollars opposing ICWA legislation nationwide. Quad A (the American Academy of Adoption Attorneys) waged a war with the Bureau of Indian Affairs in 2015. Earlier this fall, the 9th Circuit Court of Appeals threw out a challenge to the ICWA, but it was just this month in Texas that a judge has actually ruled ICWA to be unconstitutional.
U.S. District Judge Reed O’Connor of Texas issued an order on October 4 that found that ICWA illegally grants Native American families preferential treatment in adoption proceedings for Native American children. The racial basis, he says, is a violation of the Fifth Amendment. Appeals have already been filed by several groups, and litigation is sure to ensue.
What does this mean to Abrazo’s adoptions? Little or nothing, actually, because the legal counsel for ICPC (Interstate Compact for Protection of Children) issued a ruling years ago stating the ICWA is not applicable in voluntary adoption cases. (See inset.)
This does, however, raise very valid concerns for anyone with connections to Native American groups and causes, as should any idea of the adoption industry exploiting of this situation. To be a member of an Indian tribe is to possess part of a rich and beautiful heritage, which should be treasured and protected. Abrazo supports the intent of the Indian Child Welfare Act as well as the people it seeks to shield from cultural genocide.
If you also believe that ICWA and Indian adoptions should both be protected, please consider calling your lawmakers to voice your concerns, but don’t stop there; make a donation to the Indian Child Welfare Act Law Center and help them fight uphold the law, on behalf of Native American children all across America.