NICWA's Terry Cross: Misdirected Blame

PORTLAND, Ore., April 5, 2013 /PRNewswire-USNewswire/ -- Terry Cross, executive director of the National Indian Child Welfare Association, released the following op-ed.

"We were told she wasn't an Indian child and didn't think it would matter."
                         —Melanie Capobianco, Fox News, January 11, 2012

The Indian Child Welfare Act of 1978 (ICWA) is days away from the strongest challenge it has faced in its 35-year history. As the case Adoptive Couple v. Baby Girl has progressed through the lower courts, the law has been decried as an out-of-date, race-based law. Most recently, ICWA was likened to "a bludgeon to destroy existing families."

Such hyperbole serves as effective fodder for debate, deflecting attention far away from a more pertinent question. Why have those who provided legal advice to the Capobiancos in their failed attempt to adopt "Baby Girl" escaped public scrutiny for their mishandling of this case?

From nearly 40 years in the field of Indian child welfare, I have worked with a broad cross-section of adoption attorneys. And while there are still significant strides to be made to enforce compliance with ICWA's now 35-year-old requirements, it is nearly universally known in good adoption practice that Indian children who are being adopted out require additional measures to be taken before an adoption can be finalized.

Good adoption practice requires early identification of Native children and parents in adoption proceedings to ensure compliance with federal and state laws. Records show that Baby Girl's mother knew of her father, Dusten Brown's, Cherokee heritage, and communicated this to attorneys. In turn, the adoption agency determined that because of Brown's Cherokee Nation citizenship, "naming him would be detrimental to the adoption." 

Perhaps inexplicably, the paperwork legally required to notify the Cherokee Nation of the adoption proceedings was so rife with errors (Brown's name was misspelled, an incorrect birthdate for him provided, and Baby Girl's race marked unclearly) that these errors alone caused delays in the tribe's involvement in accordance with ICWA. The Cherokee Nation has said in no uncertain terms that if this basic information had been submitted correctly, they would have immediately intervened.

Most troubling is how attorneys attempted to secure termination of Brown's parental rights. Good adoption practice dictates early identification and engagement of all fathers, unless doing so would be unsafe for the mother. If Brown posed no threat, why wait months to notify him? Why wait until he was literally days from being deployed to Iraq? Speculation is just that, but this approach seems counter to good adoption practice that requires informed consent of a parent to the adoption of their child.

And yet, this is what the Capobiancos' attorneys chose to do.

With so many missteps, why have the Capobiancos' most trusted advisors eluded accountability? As recently as March 4, attorneys for the birth mother asserted that the Cherokee Nation had admitted being properly notified, a contention vehemently refuted by the Cherokee Nation itself. Any acknowledgment of failures to follow good adoption practice is slow in coming.

Instead, misdirected blame has fallen onto ICWA. But, for all the negative impacts attributed to it, what does ICWA actually do?

In sum, ICWA is designed to promote the best interests and unique needs of Indian children. Whether premised on good intention or bias, separating an Indian child from his or her family and tribe can have devastating consequences. The best interest standard always requires the court to assess many facets of a child's life, development, and well-being. ICWA merely ensures that one facet considered among the many be the child's continued connection to family and culture.

Some who fiercely assert the evils of ICWA contend that all children should be treated equally and therefore ICWA should be dismantled. To be sure, this argument sounds reasonable to those unfamiliar with the long history that led to ICWA's passage. At that time, between 25­–35 percent of all American Indian children were removed from their homes, most unnecessarily. Of these, 80 percent were placed, often permanently, in White homes. Even today, headlines from South Dakota, where a lawsuit contends Indian parents' rights have been systemically trampled, show that—for myriad reasons—Native American children are not treated equally by the system.

In public child welfare systems, they are removed from their homes at four times the rate of White children and often are not placed with relatives or other Indian families, even when such placements are available and appropriate. In private adoption systems where little regulation or oversight is present, practitioners have little incentive to consider the cultural or tribal citizen rights of an Indian child. It is for these reasons that ICWA, in requiring that active measures be taken to keep Indian families intact, actually better protects Indian children against unequal treatment in the child welfare system.

Despite the traumatic legacy of the pre-ICWA era and the continued need for its protections, ICWA now faces the real possibility of being weakened and even dismantled entirely.

"You don't change a whole law because of one case," said former Senator Jim Abourezk, who sponsored the Senate bill that became ICWA in 1978, and is now the lead on the amicus brief by members of Congress in support of Brown and the Cherokee Nation.

Yet undoing ICWA is exactly what the Capobiancos aim to do. As painful as this ordeal has been for them, the root cause of this case is not that ICWA is a problematic, misapplied law. Rather, as every lower court has concluded, it was the unwillingness to follow the clearly defined and well-known law that led to their failed attempt to adopt Baby Girl.

Terry Cross is a member of the Seneca Nation and the executive director of the National Indian Child Welfare Association in Portland, Oregon.

SOURCE National Indian Child Welfare Association