Will the US Supreme Court End the ICWA ?

Within my all things adoption group, I have become aware of the Indian Child Welfare Act, as one outspoken member has brought us awareness of this. The Indian Child Welfare Act was passed to redress years of mass separations of Native families.

In custody battles involving criminality and other race spouses, Native rooted children can find themselves removed over legal involvement and then removed again over abuse, ending up in and out of group homes and rehabilitation centers, and often eventually landing in foster care.

On November 9th, the Supreme Court will hear oral arguments in Haaland v Brackeen, a case challenging the constitutionality of the Indian Child Welfare Act. Designed to keep Native American children in their communities during custody, foster care and adoption proceedings, ICWA was passed in 1978 in response to the mass separations of families that had been customary since the 19th century. Many Native American activists are worried for the future of ICWA, given the rightwing composition of the supreme court.

Some history – In 1860, the Bureau of Indian Affairs opened the first of what would become more than 350 American Indian boarding schools, with the intention of “civilizing” Native American children – an assimilationist policy regarded by many as “cultural genocide” today. By the 1920s, nearly 83% of school-age Native American children were enrolled in boarding schools, where a government report found they were malnourished, overworked, harshly punished and poorly educated. As boarding school attendance increased into the 1960s and 70s – peaking at 60,000 in 1973 – the US government rolled out another program, called the Indian Adoption Project. It ended up placing 395 Native American children from western states with white families in the midwest and east coast.

By the 1970s, data showed that 25% to 35% of Native children had been removed from their families during the boarding school era, leading to the passage of the Indian Child Welfare Act in 1978. According to the law, states are required to follow protocols when handling certain custody cases involving a Native child, including involving the tribe in the proceedings. Perhaps most notably, ICWA also establishes a placement preference system, requiring child welfare agencies to try to keep Native children within their communities – by placing them, for example, with extended family or with a foster family in their own tribe – to ensure that they do not lose ties to their heritage.

Despite ICWA’s existence, the law has often gone unenforced. That’s in part because there is no federal oversight agency monitoring compliance. Although the Bureau of Indian Affairs released guidelines designed to improve enforcement in 2016, tribal officials say that state welfare agencies regarded them as suggestions that were not legally binding.

Therefore, regarding this Supreme Court case – in 2016, a 10-month-old Navajo and Cherokee boy was fostered by a white Texas couple, Chad and Jennifer Brackeen, who ultimately adopted him. When the Navajo Nation was alerted to the case and stepped in to place the child with a Navajo family, the Brackeens sued.

The Supreme Court is set to hear arguments on November 9 2022 and eventually decide these questions related to the Haaland v Brackeen case – does the ICWA discriminate on the basis of race and does the law supersede a state’s right to control child custody placements ? The Brackeens and their supporters argue that ICWA violates the constitution’s equal protection clause, discriminating against them as a white family, and imposes unlawful requirements on states. The federal government and Native advocates say that Congress may enact laws that apply to states in order to uphold its treaty obligations, and that Native Americans belong to a political class based on their sovereign status, not a racial group. Overturning ICWA would reshape the legal relationship between the federal government and Indian tribes.

Many states are now enshrining ICWA in their state law. To date, ten states have codified ICWA – and eight have added provisions to augment it. Native-led coalitions in other states are working to do the same.

A For Effort

Today’s story – I reunited with my biological family when I was 17 and have lost contact with my adoptive family since then, due to abuse/abandonment. My kids have always known my biological family as family and thankfully there isn’t any way for them to know how different it feels for me. Over the summer we moved from Wisconsin to Kansas to be close to my biological family. My birth mother and I have always had a challenging relationship and this move has made it unbearable. We moved into a house her boyfriend had available to rent and this has caused her to feel entitled to overstep when it comes to my kids and my life. She never had other kids and seems to be wanting to make up for it with mine. I’m almost 40 and am struggling greatly. Through the move, I have discovered that Wisconsin is truly home to me and my kids, and my real family, that I thought I was searching for, is the family I created back in Wisconsin. Now my kids and I are working on moving back and I’m struggling with so many emotions. I desperately want to be back home as soon as we can find housing but I know that moving back will likely server the unhealthy ties I have with my birth mom. It’s a relationship that part of my heart has always longed for but causes me endless stress.

Not all reunions work out. It is so hard to develop relationships with people you’ve not known your whole life – I know. I’m there myself. Boundaries are the distance where I can love you and me simultaneously.

Sometimes we have to try something to know it isn’t right for us. Teaching our kids that decisions don’t have to be forever, that it’s okay to change your mind and realize you aren’t where you need to be, and to then take steps to change your circumstances as soon as you reasonably can.

Speak Your Truth

I got a blog notification from LINK> Tony Corsentino, an adoptee that I now am glad to be able to read thoughts from. He notes people whose lives begin with severance and secrecy need to speak their truth. He goes on to say that secrecy in adoption makes one’s story into contested property, where truthseeking, not to mention truth speaking, can be received as betrayal.

He says the nearly universal expectation is that adopted people are grateful for their adoption—grateful to their adoptive families, grateful for a system that rescues infants and children from perilous circumstances, from abusive homes, from orphanhood. That expectation imputes a form of dependence to adopted people: that of being beholden to their adopters, and to the system that placed them in their adopters’ families.

Speaking one’s truth is an act of self-emancipation.

Often when an adopted person speaks of being adopted as a less than positive experience, their truth is labeled a “poor adoption experience.” The implication is that questioning the justification for severing a child from their original family must come out of the aftermath of a traumatic experience.

When the question is one of rights, the justification for denying people control over their bodies, it is the point. Storytelling is essential to moral argument. He goes on to note – this is true of adopted people who recount their experiences with adoption. I do not know whether to call my own adoption experience “positive” or “negative” overall. I was taken from my mother and given to people who did and do love and care for me. That’s a “positive,” surely.

Regarding his own search, he says “I did not find my birth parents until the fifth decade of my life.” In my own roots search, I was well into my sixties before I knew anything about my genetic and biological origins as regards my original grandparents. My own parents died knowing nothing beyond their names at birth and some sketchy information about one or both parents’ names.

So, Tony notes – “I have reflected on all those factors—the barriers adopted people face in trying to reclaim their original identities, their sense of their place in the world, their cultural and ethnic roots, their family health histories—and I see no compelling moral justification for those barriers’ existence. Certainly no justification for the lack of support for adopted people who wish to overcome those barriers.” I agree. During my own search, it was like repeating dashing my head against a concrete wall.

The reason why individual trauma and harm matter in the stories adoptees tell is it forces other people to ask themselves whether it really had to be that way. Adoption is the legally sanctioned erasure of the child’s original identity.

Adoptees tell their stories because they believe that they have insights about adoption that non-adopted people will at least find intelligible. Even while acknowledging that it is impossible for people who have not lived severed aka adopted lives to truly understand. As the stories pile up, one has to admit that the harms are not all in one adoptee’s head but are a universal experience among them as a whole.

What To Do ?

Today’s question – A woman adopted 2 kids years ago and has raised them since they were very young. Now that they are older, some truth came out that the situation that caused the adoption wasn’t as bad as she had been led to believe.

1) She wants to know if there is a way for their birth certificates to revert back the originals? She thought she had to change them in order to adopt the kids. (This is a common misperception that adoptees are trying to change because it almost always matters to them.)

And/or

2) Can she help their birth mother regain custody so that she can finish raising her own children ? Or un-adopt them, is that even possible?

A complication is that the kids say they don’t want a relationship with their biological mother or even to meet her. The woman is not certain they are telling the truth. Maybe they don’t want to hurt her feelings?

Some responses –

1) She probably did need to change the birth certificate to adopt, that’s still the case in many jurisdictions. It’s why guardianship is often preferred, though what that means also varies from one jurisdiction to the next, sometimes it is viewed as not allowing for stability.

2) The first step is for the kids need to get to know their mother again. If they refuse, I’m not sure what she can do other than to gently encourage it and never speak poorly of their mother. If they get to that point, what comes next varies widely from one jurisdiction to the next.

The mother may be able to re-adopt her children. However, if the allegation was neglect or abuse determined by Child Protective Services, that may not be possible. Same with guardianship. She might be able to take guardianship of her children, or not, depending on the situation.

These options may fail. It may be possible for the adoptive mother to give the original mother a power of attorney, should the children move in with her, and/or unofficially she could share custody of them, just like some separated/divorced parents do.

The woman definitely needs to consult a lawyer, so that she can determine if the court might view her as a possible risk. This assumes that Child Protective Services removed the children from her care. If her Termination of Parental Rights was a private relinquishment (that would make all of the above FAR easier.)

Another possibility is an adult adoption, which could restore the information that was originally on their birth certificates (by again changing the documents to finalize an adoption). If these children are already teenagers, that makes this option easier, as long as they are in agreement.

And this is the most important point, from an adoptee – It’s very possible that they don’t want a relationship with their biological mother, if she hasn’t been in their lives. Listen to what they are saying. I would never have wanted to leave my adoptive family to go and live with my biological family. It would have felt like a complete rejection of the life I had lived. I wouldn’t want another name. I am the name I have been for a long time, not baby girl “x”. These kids need to be the ones leading. Everyone else needs to just sit back and listen.

Therapy. Individually. Let them heal their own traumas. Create a space that’s safe and secure enough that they know they can speak honestly about how they feel about their biological family.

Another adoptee admits that she wanted so badly to have a relationship with her biological family. “It was freaking awful. The worst.” It’s not always what the adoptee thinks it would be like, either way.

The most important thing is their healing and security. The rest will come, if that is the right direction. They don’t deserve to have the process of reintroduction rushed, if they say “no” for any reason. It should be their lead.

Trust-Based Relational Intervention

I can’t vouch for this method – Trust-Based Relational Intervention – I’m only just learning about it. TBRI is an attachment-based, trauma-informed intervention that is designed to meet the complex needs of vulnerable children. TBRI uses Connecting Principles for attachment needs, Empowering Principles to address physical needs and Correcting Principles to disarm fear-based behaviors.

A question I saw that I could easily have is whether TBRI is somehow religion based. The answer I saw said – TBRI is NOT a faith based approach but one that is solidly grounded in neuroscience and brain based research. It is an evidence-based, trauma-informed model of care for vulnerable children and youth with a theoretical foundation in attachment theory, developmental neuroscience, and developmental trauma.

Dr Karyn Purvis was the Rees-Jones Director and co-founder of the Karyn Purvis Institute of Child Development at Texas Christian University in Fort Worth Texas. She was a co-creator of Trust-Based Relational Intervention and the co-author of a best-selling book in the adoption genre, and a passionate and effective advocate for children. She coined the term “children from hard places” to describe the children she loved and served, those who have suffered trauma, abuse, neglect or other adverse conditions early in life. Her research-based philosophy for healing harmed children centered on earning trust and building deep emotional connections to anchor and empower them. On April 12, 2016, Dr. Karyn Purvis passed away at the age of 66.

TBRI involves three principles for working with kids from hard places – Connecting, Empowering, and Correcting. [1] The Connecting Principle asserts that the caregiver must first be mindful about themselves and what they bring to the interactions with their child. Any unresolved issues or triggers the caregiver might have could get in the way of them connecting with their child. [2] The Empowering Principle focuses on meeting the child’s basic needs for food and hydration, as well as meeting their sensory needs, to help the child regulate and to create an ideal environment for connecting and learning. The Empowering Principle also asserts that daily routines, rituals, and preparation for transitions are important to a child’s overall ability to regulate, as well as to build trust and connection with their caregiver. [3] The Correcting Principle aims to address a child’s behavioral issues in a positive way. Two important principles in the correcting component are proactive and responsive behavioral strategies. Proactive strategies focus on putting the child on the right path before they even have a chance step one foot onto the wrong path. Responsive strategies are used to mindfully react to a child’s inappropriate behavior. Two essential responsive strategies are to provide the child with choices and to encourage redo’s.

Rehabilitation Not Incarceration

Pieper Lewis – “My story can change things. My story can change me.”

I had seen headlines but really didn’t know much about this young woman. Turns out she was adopted at the age of 3 from foster care. She was emotionally abused, sexually trafficked and raped at the age of 15. She had pled guilty to stabbing her alleged rapist to death. She is quoted as saying “Hurt people hurt people whether it’s intentional or not. My actions caused pain and hurt upon others. Others’ actions caused pain and hurt upon me. The events that took place that horrific day cannot be changed, as much as I wish they could. That day, a combination of complicated actions took place, resulting in the death of a person as well as a stolen innocence of a child … I feel for the victim’s family. I wish what happened never did. I truly do.” She had been in state custody for more than two years. Though she feels bad for the grief she has caused Brooks’ family – she does not, understandably, feel grief for the act of killing her alleged rapist.

At sentencing, she was ordered to pay the victim’s family $150,000 plus another $4,350 in civil penalties and do 200 hours of community service a year. She was also given five years of probation and a deferred judgment that could be wiped off her record after satisfactorily fulfilling all of the requirements. If the victim’s family wants to participate, she is also ordered to take part in a victim-offender reconciliation session with them. She is required to undergo mental health and substance abuse evaluation as well as GPS tracking and monitoring. She will not be eligible for early release from probation.

Her aspirations are to become be a juvenile justice advocate and counselor. She would hope to “create a place of comfort and acceptance for girls like me.” This young woman had so impressed her high school freshman math teacher, Leland Schipper, that he created a LINK> GoFundMe for her. This has raised so far enough to cover the financial requirements of her judgement plus some.

“I feel like my story wasn’t believed. Today my voice will be heard. The story of Pieper Lewis holds power. The trauma of Pieper Lewis carries a ruptured beginning, tormented past, and a delayed future.”

Different Not Better

Valid response from a former foster kid –

Stop saying better. Start saying different. When the adoptee is rehomed, abused or killed then it’s not our problem. We can’t guarantee better. Right now adoption is based on what people want. It was based on this way ever since the government and agencies took over. It’s not about helping kids but helping yourself to kids. People don’t adopt to help kids. They adopt to become parents. To be mommy and daddy – not play mommy and daddy.

It also upsets me – the kids who aren’t seen as worthy, don’t get adopted. So again, who is adoption for ? People are waiting for a non-existent baby to be created or a baby to lose their family in foster care, so they can grow their family.

What was this in response to ?

I am a social worker by education, been out of the field for about 6 years, I worked for about 1 year in foster care/adoptions. I left the field because I felt it was difficult to make a difference/help due to all red tape and bureaucracy.

Anyway, one thing I took from my experience, was that I want to adopt. I just thought I would be loving a child, adding to the family, teaching them, helping them grow, etc.

I did believe/was taught (or something) that adopting children from foster care, etc was… making a difference, that it was in a way, giving them another chance. A chance to give them a good home, better opportunity and away from abuse, neglect, exploitation etc. Or that parents who give up their children for adoption are brave, because it’s really hard to give up a child, but they do it out of love, because at that moment they can’t provide a good life for them, etc.

The Hardest Thing

To give birth under an assumed name and then walk away leaving the baby behind. Clearly it was the plan before the baby was born. The mother has yet to be identified or found. Child Protective Services has now placed the baby girl in a foster home. After being there for a year, they will want this couple to adopt the baby girl.

The only thing the mother left behind was a box with a toy and a note that says “the hardest thing I have ever went through, is missing you”. If the mother were to be found and come back for her baby, of course, reunification of the mother and infant would be the obvious goal.

But if the mother does not return, how will her adoptive parents explain to the little girl what happened ? The current foster mom definitely will not say – “she loved you so much, she gave you away”.

Suggestions –

Find a therapist to help you navigate what will be a lifelong process. Words matter and age appropriate are critical. You have a big job ahead of you – do all you can to do it well.

DNA testing as soon as possible to identify members of the natural family and get in contact with them. It’s unlikely to find nothing. Many people take DNA tests. Even a cousin can point you in the right direction.

In answer to the question of what to tell others about the child, some practical advice – A child in your care ? A kid who lives with you ? That’s what she is right now. Asking what to tell her if or when you adopt her is putting the cart before the horse. You should be doing everything you can to prevent that from happening, including a permanent legal guardianship. Did you see the recent case in Michigan where a mother didn’t tell the father that she placed the baby? You need to slow this process way down, so you can be sure this child doesn’t have family out there who want to take care of her.

The Dept of Social Services is going to be working to find the mom. There are many reasons she may have felt she had to do this. Maybe she’s in an abusive relationship or fears harm to the baby. It is not uncommon for some mothers to fear they can’t care for a baby. Good to hope they do find her and are able to help her.

At this point, no one actually knows the mother’s story. That matters.

As for the child’s story – always tell her the truth. You don’t know why the mother chose what she did. So if the child asks – you say, I don’t know. “I don’t know honey, sometimes people make decisions and we don’t know why.” “You are safe and cared for and loved and we will support you no matter what.” Follow up with a trauma informed therapist and let take the therapist take it from there. Explain that she can talk with you about it. Never sugar coat or tell her things you don’t know. Tell her what you know. Facts. You can do it age appropriately. It is her story. This is the reality.

Begin a Lifebook for her, so that she doesn’t have to ask. Work with a trauma informed therapist on how to word her story in a way that she can understand at various ages (perhaps include photos of the hospital room and certainly of the note and toy, the box they were in) and keep the story about her (not about you or your thoughts or feelings). Practicing the story before the kid is old enough to ask will help avoid it becoming a big secret or something scary.

Read The Primal Wound by Nancy Newton Verrier. It is perspective changing.

Fear of Abandonment is Real

I went looking for a topic for today’s blog and found this story by Stephanie Drenka. She writes that – “I was struck by the pervasiveness of adoptive parent-focused stories. Where were the adoptee perspectives ?” The photo is from when when she was reunited with her biological mother, two sisters, and a brother.

She notes that “abandonment issues do not end in adulthood. Though I haven’t experienced divorce, I can imagine it might be similar. If a woman’s husband leaves her, even after remarries the perfect guy, she may always deal with a persistent fear that he will leave her as well. Fear of abandonment is real, and has to be acknowledged in order to resolve it.”

I have personally witnessed this issue playing out in a loved one and it had not been resolved previously. It came out at a very inopportune time but never-the-less had to be dealt with in its extremity.

Stephanie notes – Even the most well-adapted adoptee still faces moments where the trauma resurfaces. For me, that meant small things like every time a doctor would ask me for my family medical history or now, post-reunification, not knowing when I will be able to meet my biological sister’s new baby boy. And adds – I won’t go into the trauma experienced by birth mothers and families, because that is not my story to tell. Suffice it to say, from my personal reunification experience, adoptees are not the only ones who struggle with the aftermath of adoption.

She says – I love my (adoptive) mom and dad to the moon and back. They are my role models, biggest supporters, and best friends. I feel blessed to have them in my life– but please don’t presume to tell me that I was “lucky” to be adopted. Like many adoptees, my parents told me that I was special. While meant with good intention, being chosen is a burden. It puts pressure on us to be perfect and grateful. It can be incredibly emotionally taxing and negatively effects your self esteem in the moments where you can’t live up to that perfect picture. These expectations can prolong mental illness without treatment, because it may seem like asking for help is being ungrateful.

Choosing to adopt is an expensive proposition and as Stephanie notes – one mostly related to white privilege. I agree with her stated perspective – Can you imagine if the money people spent on adoption services went instead to supporting single mothers or low-income parents? Or what if adoption profits were used to benefit adoptees themselves in the form of post-adoption services like counseling, genetic testing, mental health treatment, or birth family search costs?

She ends her own essay with this – The truth about adoption is that there is no Truth. Adoption is many different things for many different people. It is love, loss, grief, abuse, hope, despair. It can sometimes be celebrated, but should always be examined through a critical and compassionate lens.

No Self To Begin With

It is a long story in The New Yorker – The Price of Admission, published on April 4 2022. It is a long, sad story of abuse and gaslighting, beginning in locations involving St Louis Missouri (our urban center). It is the story of a former foster care youth and the agendas of higher education. Mackenzie Fierceton has been a brilliant student, once accepted for a Rhodes Scholarship, and is a committed activist.

I encourage you to read the entire article as I did this morning. Necessarily, I am only pulling out a few concepts I jotted down related to Mackenzie’s situation.

If trauma creates a kind of narrative void, Mackenzie seemed to respond by leaning into a narrative that made her life feel more coherent, fitting into boxes that people want to reward. Perhaps her access to privilege helped her understand, in a way that other disadvantaged students might not, the ways that élite institutions valorize certain kinds of identities. There is currency to a story about a person who comes from nothing and thrives in a prestigious setting. These stories attract attention, in part because they offer comfort that, at least on occasion, such things happen.

“. . . Mackenzie is being faulted for not having suffered enough. She was a foster child, but not for long enough. She is poor, but she has not been poor for long enough. She was abused, but there is not enough blood.”
~ Anne Norton, Political Science Professor at the University of Pennsylvania, who has provided a home for Mackenzie

Regarding the question about being a first generation student at a university – Mackenzie had e-mailed the associate director of admissions and recruitment at Penn’s social-work school to ask how former foster youth should answer the question. “I personally believe the education level (or/and financial status) of the biological parents would be irrelevant,” the associate director responded. “The youth should select into the option that provides them access to the most funding—which would be to indicate that they are a first-generation college student.”

“When we allow stereotype to be our stand-in for disadvantaged groups, we are actually doing them a disservice. That’s what scares me about this case. It’s, like, ‘You’re not giving us the right sob story of what it means to be poor.’ The university is so focused on what box she checked, and not the conditions—her lack of access to the material, emotional, and social resources of a family—that made her identify with that box. Colleges are in such a rush to celebrate their ‘first Black,’ their ‘first First Gen’ for achievements, but do they actually care about the student? Or the propaganda campaign that they can put behind her story?”
~ Anthony Jack, a professor at the Harvard Graduate School of Education who studies low-income and first-generation college students

“There have been moments of almost panic where I am just cognitively questioning myself, like, ‘Did I misremember something?’ It’s easy to slide back into that state, because I want anything other than the reality—that it is my bio family who has caused so much harm—so I will do backflips to try to make it not true.”
~ Mackenzie Fierceton

It is a very real case of gaslighting – “You start to think that maybe you had it wrong and that maybe it actually did happen the way that they say it did,” Mackenzie wrote. “And then you just throw away the real memory, the true one, and replace it with the one that they have fed you a million times, until that is the only thing you can remember.”

As an addendum, Penn did release her Master’s Degree. From The Daily Pennsylvanian.