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.

Guilt

Today, I’ll let the feelings and thoughts speak for themselves. (Not my own personal experience.) From blogger – At The Willow Tree.

Today marks one week since I had to give him away.

You’ve probably heard that being a foster parent is rewarding. You’ve probably heard that it is challenging. You’ve probably heard that there is grief in saying goodbye. You’ve probably heard that there is joy in knowing we were there when it counted.

But have you heard of “foster parent” guilt?

I hadn’t. In fact, since I’ve been fostering, I still haven’t heard anyone mention it. This is the first I’ve spoken of it.

You see I had this sweet little love until Thursday of last week.

He came to us at three weeks old. He had to have an extended stay in the hospital to help his little body detox, followed by two failed placement attempts with relatives… they gave him back to CPS, TWICE.

I remember his perfect little face, fingers and toes on the day he came HOME. Now he’s almost six months old. He’s finally sleeping through the night, two weeks ago he rolled over for the first time and he’s almost sitting up on his own! He’s devouring any solid food he can get his cute, chubby little hands on. He is a real smiler, it literally goes from ear to ear. He can’t help it. He is my happy boy. He looks to me for comfort and security. You see, I was his constant. I was his safe place. I was his everything, until last Thursday.

My home was the only one he’s ever known. My arms were the ones that he’s happiest in. My voice is the one that calmed him. My family was his family. He trusted me totally, completely, utterly, unquestionably.

And what shatters my heart is that I had to betray his trust. He wasn’t mine to keep. I know that – BUT HE DIDN’T.

This last week has been a blur. The long awaited court hearing has come and gone. I found out that the home approval had last minute been approved for another relative. The judge approved moving my boy again to yet more relatives. I had two hours after the court hearing to pack what I could, say goodbye and drop my baby off in an unfamiliar town, in a strange parking lot with more caseworkers. I watched as they drove away with him searching for ME! The guilt is crushing.

I had to give him away.

And as much as that hurt me, the thing that I can’t bear is how it has hurt him. How his little innocent heart, which believed I would protect him from everything, is now so deeply and irreparably hurt by me.

Please don’t be quick to jump and tell me not to feel guilty. Don’t say it’s not my fault. Don’t remind me of the good I’ve done and how that will set him up so well. Because in my head I know these things. I know them. But however true they are, they can’t change the facts.

Foster care will always, always be second best. And moving these already broken little people on to yet another home will always, always cause even more trauma. It’s unavoidable. It’s not my fault, yes – but I am still caught up in the process. And it is still me who had to look into those sparkling, big brown beautiful eyes, so full of trust and love – and then hand him over to strangers, and leave.

I’m sure he has cried for ME. He has searched for ME. He feels abandoned by ME.

So yes, I am guilty. And I am heartbroken. And so incredibly sad and sorry for the unfairness of this world.

But there is hope. And faith. And love. And in the truest, wisest book ever written we are told that love is the greatest.

The Anti-Adoption Movement

There is definitely a movement to reduce the adoption of newborns from unwed mothers and from people whose only sin is poverty. That’s not to say that it is not also important that children are never left in a seriously abusive situation. Unfortunately, what is “abusive” to some who insist on interfering in other people’s lives is not what true abuse actually is. Very few activists are claiming that adoption shouldn’t be an option, but the activists currently involved in the issue recognize that adoption is far from the perfect solution it was so long perceived to be.

Already hopeful adoptive parents living in Texas are celebrating a bumper crop of adoptable babies in about one year from now. I suspected that as one of the motivations all along.

One woman describes her experience. The adoption agency had her move to another state while pregnant, purposely isolating her from friends and family who might have helped her. Though she knew who her baby’s father was, the agency told her not to tell him she was pregnant. She could have sued him for child support—he was a wealthy lawyer—but the adoption agency didn’t talk about that, only about the hardships she would face as a “welfare mom,” should she keep her child. They called her a “family-building angel” and a “saint” for considering adoption. “It was crazy subtle, subtle, subtle brainwashing.”

Adoption has long been perceived as the win-win way out of a a difficult situation. An unwed mother gets rid of the child she’s not equipped to care for; an adoptive family gets a much-wanted child. But people are increasingly realizing that the industry is not nearly as well-regulated and ethical as it should be. There are issues of coercion, corruption, and lack of transparency that are only now being fully addressed.

One issue is where an “open” adoption is promised but the adoptive parents sooner or later renege on that promise. So one reform is seeking to guarantee that “open” adoptions (where birthparents have some level of contact with their children) stay open. Activists also want women to have more time after birth to decide whether to terminate their parental rights. Given time with their newborn, many new mothers change their mind about adoption and decide to give parenting their child a serious effort. Young women who find themselves pregnant and unmarried still face pressure to choose adoption.

Reproduce justice activists tend to focus on rights to contraception and abortion. Adoption reforms are equally important when it comes to men and women having full control of their destinies. Thanks to legalized abortion and a drastic lessening of the stigma against unwed mothers, the number of babies available domestically has been shrinking since the mid-’70s. Fifty years ago, about 9 percent of babies born to unmarried women were placed for adoption. Today that number is 1 percent.

Adoption is too stark in its severance of the legal relationship between those adopted and their birth family, and out of line with the emotional realities for most involved. Adoption is not a risk-free panacea. It is highly complex, with implications for all concerned that endures for decades. The identity needs of adopted people are very important and adoption, in its current form, does not recognize these.

There are other options, such as kindship placements or guardianship, which can provide safety and stability for children, but do not require such a severe break with key relationships. When we do not provide financial support to families in need but instead take their children away from them, we have to ask ourselves – Are we really promoting the human rights of all children, irrespective of background, to live safely within their families of origin? It would appear that we do not.

Some of the above was excerpted from The Trauma of Adoption. Other parts of this blog were excerpted from Meet the New Anti-Adoption Movement. Some comments are my own.