John
Echohawk had heard enough. On May 14, he had listened with growing
irritation to lawyers representing the American Academy of Adoption
Attorneys (AAAA) denigrate the recently published guidelines and
proposed rule for the Indian Child Welfare Act in front of the very
people who had authored them.
As the founder of the Native American Rights Fund, Echohawk had flown
to Tulsa to provide his comments in the standing-room-only ballroom at
the Marriott. Hundreds of Indian people, tribal leaders, ICWA workers
and lawyers from across the country had converged on Tulsa for the
sixth—and largest—public hearing conducted by the Bureau of Indian
Affairs in anticipation of the agency updating and enforcing the
provisions of the 37-year-old federal statute.
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| John Echohawk |
Throughout the day, one after the other, witnesses on both sides had
pulled back and forth in a tug-of-war regarding perhaps the most seminal
issue confronting American Indian tribes in the 21st century: The right
to raise their own children in their home communities.
The debates at the public hearings reopened old grievances and
unhealed wounds at the core of an ongoing conflict over Indian children
that has been raging for more than 500 years. Beginning with the
Spaniards, who landed in the West Indies in the late 15th century,
Indian tribes have been at war over possession of their children with
one power after another—including the British, the French, the Dutch and
the United States—ever since.
For nearly a year, many of the people attending these public hearings
had worked in near-unprecedented solidarity with tribal nations across
the country and numerous Indian child welfare organizations to submit
comments and suggested changes to the new guidelines before they were
published by the Bureau of Indian Affairs in February.
In March, Assistant Secretary for the BIA Kevin Washburn took it a
step further by announcing the agency’s intention to seek a federal rule
that would make ICWA binding, rather than “legally persuasive”—which
allowed social service agencies, adoption attorneys and state court
judges to bypass the law at their discretion since the passage of the
ICWA in 1978.
The period for public comment concluded at midnight Monday, after
which the BIA began the process of evaluating and analyzing testimony
and written comments before publishing the final rule in the Federal
Registry later this year. The rule will then become codified into the
Code of Federal Regulations.
As the hearing in Tulsa got underway, adoption attorneys lined up at
the microphone. Among their complaints: Indian parents and tribes
“never” show up in court to intervene in ICWA foster cases; the BIA does
not have authority to enact regulations; the BIA failed to “consult”
the adoption industry; Indian children with low blood quantums should
not be eligible for ICWA; that being forced to attend the hearings was
subjecting the adoption attorneys to a “hostile environment,” that the
hearings were only held “east of the Mississippi;” the postage costs
required by the rule are too expensive, and so on.
A number of people testified at public hearings on ICWA. (Courtesy Frank Duncan)
All of these claims were refuted by tribal witnesses, in perhaps one
of the most contested rulemaking procedures in the history of Indian
affairs. Tribal attorneys and ICWA workers said their intervention on
behalf of their children in state courts across the country is routinely
met with irritation by family court judges and social services, if not
outright contempt. Often, they said, judges and social workers make it
as difficult as possible for tribes to locate and reclaim their
children. The emergency temporary custody hearings, they said, are often
perfunctory and dismissive of ICWA and its provisions and are the point
of permanent departure for many Indian kids.
In many cases, the tribes argued, they are never given notification
that one of their children is in the system. “We can’t help a child we
don’t know about,” said one.
By this point, John Echohawk was seething. Stepping to the
microphone, he ripped the adoption industry for not only their lack of
knowledge about Native people, but their inability to grasp the
fundamental reasons ICWA was enacted in the first place.
“Since the Native American Rights Fund was organized 45 years ago, we
have been involved in thousands of cases across the country which
involve our sovereignty, our homelands and our culture. Some have been
Indian child welfare,” he said, his voice rising in an uncharacteristic
show of public anger. “I support the proposed rule because ICWA enables
us as tribal governments to protect our children to stop their wholesale
removal. But in my opinion, the biggest problem we face as Indian
people is the ignorance on display by social services, lawyers, state
judges—and yes, even Supreme Court justices.”
The growing conflict between the tribes and the adoption industry had been brewing for years and came to a head during
Adoptive Couple v. Baby Girl
in 2013. But it flared anew earlier this year after the Bureau of
Indian Affairs published the guidelines in February. The AAAA
immediately issued a
press release on March 12 crying foul.
Last Wednesday, in advance of the final public hearing in Tulsa, the AAAA issued another
press release
challenging the BIA’s authority to engage in rulemaking, saying that
the proposed changes “are contrary to the best interests of Indian
children, Indian parents, and will only foster increased litigation and
constitutional challenges.”
According to their
website,
the American Academy of Adoption Attorney is a not-for-profit
organization comprised of attorneys, judges and law professors
throughout the United States and Canada whose mission is to “protect the
interest of all parties to adoption,” including “legislative efforts to
amend ICWA and establish federal protections for birth parents.”
For tribal nations, their legal teams and many Indian child welfare
professionals, however, the industry complaints are only new insofar as
the organized
ground game
employed to forfend any changes to a business structure by an
aggressive, well-funded industry. According to market research giant,
IBISWorld, for example, adoption in the United States is a
big business,
pulling in some copy4 billion a year with a projected annual growth of
nearly 10 percent, as approximately 150,000 children a year are placed
for adoption.
Meanwhile, Russia, India and other countries including China,
Vietnam, Guatemala and Nepal have either banned, temporarily halted, or
severely restricted adoptions to the U.S. due to ongoing concerns around
corruption, coercion and baby-selling, as well as the growing practice
of “re-homing” adopted children to new homes with little or no
oversight.
Several tribal lawyers felt the AAAA’s claims were disingenuous, at best. In its March 12, 2015
press release,
the AAAA charged the new guidelines were published “in what appears to
be a purposeful effort to bypass input from our Academy,” and that it
was “stunned by the lack of due process.” However, as far back as April
15, 2014 the Academy was participating in the process as evidenced in a
seven-page letter (
click here to see the full letter in PDF form)
that former AAAA president Donald Cofsky wrote to the Bureau of Indian
Affairs with comments and proposed changes to the guidelines.
“[The new guidelines] were not a ‘surprise.’ It was public knowledge
and everyone in the industry, Indian and non-Indian alike, knew the
guidelines were being revised,” said one tribal lawyer who declined to
be identified because the process is still underway. “But their strategy
has always been to engage in equivocation and tergiversation in order
to maintain the status quo, because any changes represent a loss of
profit to their bottom line. So our message is very direct: The adoption
industry doesn’t care about our Indian kids, all they care about is
money. And that’s fairly transparent.”
Throughout the process, the Academy has insisted that court
proceedings should weigh the “best interests” of the child, including
“attachment and bonding” with prospective parents, which has been
de-emphasized under the new proposed guidelines and rule. Bonding, the
industry says, is not simply a legal mechanism used to override ICWA,
but a guiding principle followed by its members.
The tribes, however, maintain that the standard operating procedure
among the states is to unnecessarily hold Indian children as “hostages”
in state custody for months on end—only to claim the child had “bonded”
with their foster family to clear the way for termination of parental
rights and formal adoption. Lengthy foster stays, they testified, merely
allows “possession by estoppel,” a legal mechanism designed to cleave
and hew Indian children from their families and tribes.
“Powerful Interests Have Surrounded Us”
Dr. Evelyn Blanchard is a member of the Laguna Pueblo of New Mexico
and has been working in the field of Indian child welfare for over 50
years. A grandmother and tribal elder, Blanchard was one of the first
Indian women in the country to earn a doctorate and has worked with
tribes across the U.S. and Canada to establish and codify their child
welfare laws. Additionally, she has worked with several states to
implement best practices in the promulgation of ICWA.
Dr.
Evelyn Blanchard, Laguna Pueblo provided comments and testimony at the
BIA ICWA hearings in Albuquerque on May 5. (Suzette Brewer)
She says ICWA has always faced opposition from the social service and
private adoption industries, but she is now deeply concerned about the
aggressive campaign to undermine it. “These are powerful interests that
have surrounded us because of an underlying assumption that Indian kids
would be better off being raised outside their communities,” Blanchard
told ICTMN. “I’ve worked in this field a long time and I can tell you
theirs is an everlasting belief that Indians are not worthy. But it is
my position that what constitutes ‘best interest’ of our children is not
in sync between the Western and Native mind-sets. We talk a lot about
historical trauma, but the trauma is happening now. We have to stand up
and say, ‘No more.’”
Blanchard attended the public hearings in Albuquerque earlier this
month. In her testimony, she recounted a recent case in which two tribal
children had been seized by New Mexico’s Children, Youth and Families
Department (CYFD) and separated into two non-Indian foster homes 250
miles away, over their grandmother’s fierce objections. After what
Blanchard described as a cursory investigation, CYFD said it had engaged
in “reasonable efforts” to place the children in an ICWA-compliant
home.
“Their idea of ‘reasonable efforts’ in this case is completely
insufficient,” said Blanchard. “There was a unilateral decision made
regarding their emergency placement and that’s what happens when so much
is left to individual discretion, which is compounded when you have
social workers out in the boonies. But the way the guidelines are
written you don’t have to engage in placement efforts until after they
have been seized—but it has to happen immediately.”
At press time, CYFD had not responded to ICTMN’s request for a response to Blanchard’s presentation.
Because so many Indian children wind up in lengthy stays in non-Indian foster homes, Blanchard has been watching
Oglala v. Van Hunnik
in South Dakota, a case which has gained national attention for
violations of state and federal law by social workers and judges in the
initial “48-hour” hearings in that state. In April, a judge in the
Eighth Circuit recently issued a summary judgment in favor of the tribal
plaintiffs because of the overwhelming evidence against the state. The
defendants, however, have asked the Eighth Circuit to reconsider its
ruling, which is still pending. ICWA experts say that the outcome in
that case could redefine and enforce ICWA at its most critical stage:
The emergency custody hearing, at which the fate of thousands of Indian
children is decided each year.
“Tribal Values are Inferior”
For tribal nations, support of ICWA is not only about upholding and
enforcing a nearly 40-year-old law, but also a crucial defense of the
rights of Indian children and the battle to guarantee the survival of
the nations themselves. To that end, the Navajo Nation and the Cherokee
Nation of Oklahoma, the two largest Indian nations in the United States,
have stepped forward as the proposed rule’s most vocal proponents.
Chrissi Ross Nimmo, assistant attorney general of the Cherokee
Nation, gave the formal testimony on behalf of the tribe in Tulsa. “I
think it’s important that this committee and that the executive branch
know that when we hear about children being forcibly removed from their
families, that this is not just historical accounts,” said Nimmo. “This
is not the boarding schools, this is not the state and federal
government-supported adoption plans [of the 50s and 60s]. This is modern
day and [Baby Veronica] is but one example of hundreds and thousands of
children every year that are being taken away from their families and
their tribes.”
In their written comments to the BIA, the nation was more blunt:
“[They] embrace the idea that tribal families and tribal value systems
are inferior to the families and values of the dominant culture,” said
the Cherokee Nation. “These people brutalize tribal children and tear
Indian families apart, and then portray themselves as the protectors for
children’s rights...It is sometimes appalling, 38 years after the
passage of ICWA, the comments that we still hear from state employees,
attorneys and even Judges. We see what works when the spirit, purpose
and letter of ICWA is followed and we see the tragedies that occur when
it is not followed.
This week, however, in a significant blow to the AAAA’s position, the 400,000-member strong
American Bar Association,
the National Council of Juvenile and Family Court Judges, the American
Civil Liberties Union and the Casey Foundation all co-signed their
support of the new ICWA regulations, along with hundreds of law
professors, tribal representatives and Indian child welfare experts from
across the country.
Sharon Begay-McCabe, a tribal court advocate, prosecutor and former
director of the Navajo Nation Division of Social Services, discussed the
gravitas of the challenge facing Indian tribes during the rulemaking
process.
“Children want to know who they are and where they’re from and I
think children who are raised knowing who they are have a much higher
chance of success in life,” she told ICTMN after the hearing in
Albuquerque. “The Navajo Nation supports this effort because we continue
to have problems with the states that don’t follow the law. There needs
to be enforcement and penalties so we can ensure that that ICWA is
followed, because when it’s not, it hurts the child, the family, the
community and the tribe as a whole. We can no longer tolerate this type
of tribal destruction.
“Children,” she said, “are a gift from the holy people and there’s no price you can put on them.”
The Bureau of Indian Affairs concluded the period for public comment
at midnight on May 19. According to BIA spokeswoman Nedra Darling,
formal analysis of data and comments will begin and the final rule is
expected later this year.
Please visit
ICTMN next week for
War of Words: Part 2
