Tribal v. Individual Rights in Adoption
This paper is an examination of the Indian Child Welfare Act of 1978 (ICWA). In particular, it looks at the legal and cultural conflict between the equal protection clause of the U.S. Constitution, individual rights, and tribal rights. Furthermore, it discusses if open adoption in which birth and adoptive families maintain contact after the adoption in order to allow the child access to their social and cultural heritage provides a solution, when individual and tribal rights conflict. Finally, there is a brief discussion of Canadian adoption practices of Indian children.
This paper is an examination of the Indian Child Welfare Act (ICWA) as it relates to voluntary adoption. It uses the word “Indian” throughout because it is the language encoded in the ICWA. In this paper, the term “Indian” refers to Native Americans, Native Canadians, and Native Alaskans or the indigenous people of what are currently the United States and Canada. When possible, the paper uses the names of individual tribes to distinguish the many nations to which Native people of the United States and Canada belong.
Congress Passes the Indian Child Welfare Act of 1978.
In response to the alarming rate that state social workers removed Indian children from their homes and placed them for adoption with white families Congress passed the Indian Child Welfare Act of 1978 (ICWA). Before the ICWA passed in 1978, state courts, welfare agencies, and private adoption agencies removed as many as 25 to 35 percent of Indian children from their families. In addition, social workers placed 85 to 90 percent of these Indian children with non-Indians families. (Jones, 2005; MacEachron, Gustavsson, Cross & Lewis, 1996) Even more troubling, the removals were often the result of a basic misunderstanding by non-Indian social workers of the extended kinship networks of tribal Indian communities. Social workers often considered care by any kin or tribal members who were not the biological parents to be neglect. (Painter-Thorne, 2008/2009; Watts, 1989; Murray, 2008; Jones, 2005)
The ICWA provided tribal courts with direct oversight of all child welfare proceedings for Indian children living on reservations. Later California extended their state law to give tribal courts jurisdiction over Indian children who did not live on reservations as well. (Painter-Thorne, 2008/2009). In addition, the ICWA state courts when they oversaw placements of Indian children who did not fall under the jurisdiction of the tribal courts to give preference “to a placement with (1) members of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families. “ (Indian Child Welfare Act, 1978)
Although the ICWA was a reaction to the involuntary removal of Indian children, “the ICWA does not distinguish between voluntary and involuntary child custody proceedings.” (Watts, p. 15) The ICWA provides additional protections for Indian parents who voluntarily place children for adoption, including that the termination of their rights must be before a judge. Furthermore, the Indian parent can withdraw their consent anytime until the finalization of the adoption. (Portley, 2000) Non-Indian parents never have more than 30 days after termination of their parental rights to withdraw their consent to an adoption. Although these protections are unusual, they have not engendered any controversy. The controversy arose when Indian parents decided they wanted to place their children with non-Indian adoptive parents without the approval of their tribe. This is in fact, the only part of the ICWA that has resulted in litigation, and ultimately, a decision by the U.S. Supreme Court in Mississippi Band of Choctaw Indians v. Holyfield (1989).
The Holyfield Decision.
In Mississippi Band of Choctaw Indians v. Holyfield (1989), the U.S. Supreme Court unequivocally ruled that the adoption decision belonged before the tribal court rather than the state court that approved the adoption of twin Indian babies by a white family. The birthparents, both registered members of the Mississippi Band of Choctaw Indians, placed the children with a white family when they could not find any family or tribe members willing to take both boys and raise them together. Three months after the placement finalized the tribe intervened suing for jurisdiction in the case. The birthparents and adoptive parents fought the tribe and two lower courts agreed that jurisdiction should be in state courts because the babies were born in a hospital off the reservation. The Supreme Court ruled that the domicile of the parents of the children determined jurisdiction and sent the case back to the tribal court.
The Court reiterated Congress’s determination that the ICWA reflect Indian values stating “that Indian Child welfare determinations are not based on ‘a white, middle-class standard,’ which, in many cases, forecloses placement with [an] Indian family.” (Mississippi Band of Choctaw Indians v. Holyfield, 1989) This is at the core of the conflict between mainstream American cultural beliefs about the primacy of individual rights and Indian cultural beliefs in he primacy of collective, or tribal rights. According to Goldsmith (1990) “Holyfield clarifies the competing interests among mother, child and tribe, and recognizes that these interests must be prioritized according to tribal custom.” (p. 7)
Tribal Court Decides Open Adoption in the Best Interest of Children and Tribe.
The twins in the Holyfield case were three years old by the time the tribal court heard the case. They had lived with their white adoptive parents since birth. This “resulted in a Choctaw tribal court arrangement under which the twins subject to the dispute were ordered to reside permanently with their adoptive parent but were to maintain regular contact with their birth family and tribe.” (Walters, 2008, p. 9)
This was not the first time a tribal court mandated an open adoption. Preceding the Holyfield, decision by three years the Halloway case in Utah “was resolved in tribal court when a Mormon couple who had custody of an Indian child for over five years were awarded permanent guardianship. In return, the couple agreed to maintain contact between the child and his Navajo mother.” (Walters, 2008, p. 9) In another case also preceding the Holyfield decision, “the Navajo Tribal Children’s Court granted permanent guardianship of the Navajo child to the California family that had initially sought to adopt . . . as part of the agreement, the child’s natural mother retained parental rights, and her extended family was granted ‘open and liberal’ visitation rights. Also, the child was assured tribal membership and the guardians are expected to help the child ‘retain her culture.’” (Watts, 1989, p. 19)
The tribal courts in these cases may have felt they had no choice except to award custody to the white parents because the children had been in their custody since birth. They probably feared that moving the children would not be in the best interest of the children. The tribal courts chose open adoption in what was probably a compromise position at a time when there was almost no research on the impact of open adoption on adoptees. In fact, in 1986 when the courts made the first of these decisions, open adoption was a relatively new practice.
Open Adoption Research
In open adoption, a birth family chooses the adoptive family to parent their child. In addition, they stay in contact with the adoptive family and child after placement through in person visits, phone calls, and, now, email. Kathleen Silber, a social worker and open adoption advocate, co-wrote her seminal book, Dear Birthmother, in 1982 while working for Lutheran Social Services in Texas. The book provided a compelling argument to adoption agencies about what open adoption is, and why it is best practice for voluntary infant adoption, including that it kept adopted children connected to their racial, ethnic and cultural heritage. (Silber & Speedlin, 1982)
Ms. Silber originally based her promotion of open adoption on the well-documented evidence of negative psychosocial outcomes for adoptees in closed adoptions. They believed the shame and secrecy of closed adoptions caused these outcomes, but they did not yet have any scientific evidence to back up their claims. (K. Silber, personal communication, April 20, 2011)
Over the next twenty years, significant scientific research supported these claims. There are three ongoing longitudinal studies on openness in voluntary infant adoption. One is a small qualitative study and the other two are large sample research projects. All of the studies started data collection in the late 1980s and early 1990s. The children in all of these studies are now adolescents. The findings of the three studies are strikingly similar. The empirical evidence shows that adoptees in open adoptions (compared to those in closed or semi-open adoptions) report fewer externalizing behaviors, have better ratings of psychosocial adjustment, and believe that the contact helps with their identity formation. Furthermore, they do not show any surprise, anger, or confusion about whom their parents are. (Berge, Mendenhall, Wrobel, Grotevant, & McRoy, 2006; Grotevant, Miller Wrobel Von Korff, Skinner, Newell, Friese, & McRoy, 2007; Mendenall, Berge, Wrobel, Grotevant, & McRoy, 2004; Siegel, 2008)
This research shows that open adoption does help with identity formation and that adoptees have healthy relationships with both their adoptive and birth families. This research supports the decision of the tribal courts to mandate open adoption for the Indian children placed in non-Indian adoptive homes if the desired outcome was that the children remain connected to their birth culture, and that this culture inform their identity formation.
ICWA Advocates and Foes.
In general, the foes of the ICWA object to its provisions because they believe it violates the equal protection clause of the U.S. Constitution, and violates the individual rights of Indian parents who want to make a voluntary adoption plan. Bakeis (1996) explains, “Despite the American Constitution’s promises, the ICWA requires states to treat parents of children with Indian blood differently than they treat other parents.” (p. 543) The Christian Alliance for Indian Child Welfare (CAICW) is an advocacy group of Indian and non-Indian people that opposes the ICWA for a variety of reason including that it violates the equal protection clause of the U.S. Constitution and disrespects the individual rights of Indian and non-Indian birthparents. The ICWA applies to children even if both parents are not Indian. (“CAICW Home,” 2011)
Although some adoption agencies oppose the ICWA, others supported it in principle, although it can be difficult when an individual Indian birthparent wants to make a placement that the tribe opposes. According to Kathleen Silber, IAC Associate Executive Director, “If an Indian tribe claims jurisdiction in an adoption we must respect that even if the individual Indian and/or non-Indian parent opposes the placement the tribe wants to make. This can be hard for white social workers to understand, and it is often heartbreaking to the birthparent, but the ICWA was set up to respect Indian culture, which is collective, not individual. I would like to point out that tribes sometimes claim jurisdiction in an adoption, but allow an open adoption with a non-Indian family when they do not have any member of the tribe who can parent the child.
Is the ICWA Effective?
In general, the ICWA has had mixed results regarding stemming the removal of Indian children from Indian families. According to Atwood (2002), “The ICWA has achieved considerable success in stemming unwarranted removals by state officials of Indian children from their families and communities. Nevertheless, removals of Indian children from their families of origin—by either tribal or state authorities—continue in high numbers. Indian children are placed in substitute care at a much higher rate than is average for all other children in the nation, notwithstanding the passage of the ICWA.” (p. 621)
In addition, some scholars maintain that evaluating the ICWA is extremely difficult due to problems with the federal monitoring system. (Limb & Brown, 2008; MacEachron, Gustavsson, Cross, & Lewis, 1996) Nevertheless, the Holyfield decision does appear to have affected voluntary placement of Indian children. Indian tribal courts have clear jurisdiction in these cases and can determine the placement without the Indian birthparent’s consent, placing the child with extended kin, tribal members, other Indians, or with a non-Indian family (often in an open adoption).
Canadian Practices in the Adoption of Indian Children
Like the United States, Canada instituted policies in the early to mid-twentieth century such as sending Indian children to boarding school thereby separating them from their families, tribe, and culture. After closing the boarding schools in the 1960s whites families adopted large numbers of Indian children in Canada. Canadian officials did not respond until the 1980s when they apologized for the treatment of Indian children and tried to reunite families. Although there is no national policy like ICWA, each Canadian province instituted laws to stop all Indian adoptions. Instead Canadian provinces implemented long-term foster care for Indian children. (Walter, 2008)
Open adoption has received little attention in Canada, with substantial scholarship focusing on the danger of transracial adoption for Indian children because they both lose and misunderstand their culture of origin. (Walters, 2008) However, Indigenous scholar, Carriere (2007), argues for Canadian policies that mimic the ICWA, but she also states that legislation on Indian adoption needs further examination. “At a minimum it needs to be open.” (p. 57) She uses the scholarship on open adoption already discussed in this paper to support her thesis.
Is Open Adoption A Solution for Voluntary Adoptions Covered by ICWA?
In 2001, proposed amendments to the ICWA would have mandated enforceable contact agreements in cases where the state court deemed it was in the best interests of the child. Congress did not approve these open adoption mandates for the ICWA. (Walters, 2008, Atwood, 2002) The scholarly literature splits on whether these proposals would have been a good solution especially in cases where Indian birthparents make a voluntary placement with a non-Indian adoptive family. Walters (2008) dismisses this alternative as impractical and open to possible abuse, allowing state courts to mandate openness rather than placing a child with an Indian family. Atwood (2008) disagrees stating, “Agreements for continued contact allow state courts to fashion remedies that accommodate the child’s interest in remaining with the psychological parents while maintaining ties with her cultural community. Through continued contact, the child’s identity as a member of the tribe would remain vital, thus benefiting the child as well as the tribe.” (p. 670) Atwood (2008) then notes that tribal courts frequently mandate open adoption arrangements and that state courts would be wise to follow this precedent.
Overall, it seems that tribal courts already mandate open adoption for many, if not most, cases when non-Indian families adopt Indian children. The research on open adoption supports this practice if the outcome is to help children with identity formation and connection to their birth culture. Mandating this practice in state courts involving placement of Indian children with non-Indian families appears to be best practice.
The central question of this analysis is whether open adoption can mitigate the conflict between individual and tribal rights in voluntary adoptions involving Indian children. This author would argue voluntary placement of Indian children should remain under ICWA. To exempt voluntary open adoptions from ICWA requirements would undermine the intent of ICWA, which specifically put collective tribal interests above individual interests. However, future amendments to ICWA should include provisions that mandate state courts to order open adoptions when non-Indian families adopt Indian children in voluntary adoptions. In addition, state courts should consider openness in involuntary adoptions if it is in the best interest of the child. Open adoption in these circumstances would follow tribal court practice, be in line with current research, and follow the intent of ICWA that Indian children remain connected to their tribes.
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