The Misapplication of The Indian Child Welfare Act

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by Johnston Moore

Last December, Attorney General Eric Holder announced a new Department of Justice (DOJ) initiative aimed at promoting compliance with the Indian Child Welfare Act (ICWA), a 1978 federal law passed in response to the “wholesale removal” of Native American children from their families.

Tribes were rightly concerned at the time that many Native American children were removed from their families by people who are not Native America social workers unfamiliar with tribal child-rearing practices and placed in non-Native America foster and adoptive homes away from Native America Country, where many were forced to assimilate into the majority culture, losing connection to the tribal life and customs in which they had been raised. Tribes and Native American families suffered greatly too, as they saw many of their younger members taken away.

In his announcement, Holder pledged to “ensure that the next generation of great tribal leaders can grow up in homes that are not only safe and loving, but also suffused with the proud traditions of Native America cultures.” In that statement, Holder demonstrates an alarming level of naiveté regarding ICWA, and the ways it is impacting children today.

Two of the common-sense measures of a good law are that it does what it was intended to do and, equally important, it doesn’t do what it wasn’t intended to do.

By this second measure, ICWA, though well-intentioned, fails monumentally, and does so in ways that increased compliance will mean only more disruption and trauma for many children.

My wife and I first encountered the Indian Child Welfare Act in 2001. We were foster parents to two young boys whom we hoped to adopt. The boys are half brothers biologically, the older five years old and Caucasian, the younger four and Hispanic, or so we were told when they were placed in our home in the summer of 2000.

Soon after they were placed with us, they began calling us Mom and Dad, names they had never called their biological parents, whom they had called by their first names. Their social worker remarked that she had never seen foster children and foster parents bond as quickly as we all had. Their therapist was elated at their progress. It was truly a match made in heaven, if ever a foster placement could be called that.

No relatives stepped forward to take the boys in the beginning, and their biological parents were nowhere to be found, so Los Angeles County DCFS workers began to treat our case as a fast-track adoption. We were thrilled, the boys were doing great and quickly growing attached, and we all began to prepare to make them a part of our permanent family.

Several months into the placement, a paternal relative of our older son stepped forward, requesting custody of him. Though we were told the case was far too advanced for a relative to receive placement preference at that point, and though our son had no memory of ever meeting this relative, the relative had played a trump card that apparently changed everything.

The boys, as it turned out, are 1/16 Native American, which made them eligible for membership in the Iowa Tribe of Kansas and Nebraska, making them subject to ICWA, and gave the relative (though non-NA like ourselves and related to only one of the boys) placement preference over us.

When questioned, the boys knew nothing of their tribe or Native heritage. The reservation itself was over 1,500 miles away, and neither of the boys had been enrolled in the tribe by their abusive grandfather (their mother was enrolled, unbeknownst to her).

Conversely, the tribe had no knowledge of the boys.

The case was turned over to the American Native America Unit at the L.A. County Department of Children and Family Services, where social workers began a nearly year-long battle to remove our boys from our home; against the boys’ will, against our will, and against the boys’ biological mother’s will, and for no other reason but their mother’s enrollment in a tribe some 32 years before.

I stayed up many late nights researching ICWA, and I soon discovered that neither the tribes, nor Congress, were talking about children like my sons when they came together to pass this law in 1978. But trying to reason with the social workers and their supervisors proved fruitless; in their eyes, the boys were Native America, and we were not, and therefore we were unfit to raise them.

The only thing that apparently mattered to the social workers was moving them from our non-Native America home using any means possible, including manipulation and fabrication of facts, attempted coercion and outright perjury.

Eventually, the boys’ mother testified before the judge that she wanted the boys to stay with us, which gave the judge the freedom (through a good cause showing) to allow the boys to stay with us. All involved knew that the result was miraculous, but it shouldn’t have been.

Since the adoption, we have heard from many foster and adoptive families in similar situations. In some cases, justice prevails, and children are able to stay in loving, stable families in which they’ve attached, but in others, it doesn’t, and children are removed from homes in which they have lived and thrived for considerable amounts of time because of nothing more than some minute blood connection to a federally recognized tribe.

As Holder drew to a close, he stated, “We recognize that any child in Native America Country – in Oklahoma, or Montana, or New Mexico – is not fundamentally different from an African-American kid growing up in New York City.  And neither child should be forced to choose between their cultural heritage and their well-being.”

And to that I would ask Mr. Holder what that has to do with two young boys born and raised in Southern California, whose only connection to a tribe in Northeastern Kansas is a few drops of blood. Had my son been moved to live with his paternal relative, would he have been raised in a home that was “suffused with the proud traditions of Native America cultures?”

I think not.

Johnston Moore is the co-founder and executive director of Home Forever.

Written By Chronicle Of Social Change

The Misapplication of The Indian Child Welfare Act was originally published @ The Chronicle of Social Change and has been syndicated with permission.


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