The Indian Child Welfare Act of 1978

Congress passed the Indian Child Welfare Act (ICWA) in 1978 in response to the alarmingly high number of Indian children being removed from their homes by both public and private agencies. ICWA gives tribal governments a strong voice concerning child custody proceedings that involve Indian children, by allocating tribes exclusive jurisdiction over the case when the child resides on, or is domiciled on, the reservation, or when the child is a ward of the tribe; and concurrent, but presumptive, jurisdiction over non-reservation Native Americans’ foster care placement proceedings.

While we understand why ICWA was established, we feel strongly it was not intended for custody cases like Veronica’s and so many other children. Veronica was not removed from an existing Indian home. Her birth father did not reside on a reservation nor was he actively involved in Native American culture.

Veronica was adopted at the request of her birth mother and only after the birth father stated he would waive his paternal rights and later agreed to not contest the adoption. Veronica was adopted by a loving family and placed in a nurturing, caring home. Children should never be moved suddenly from a home that is safe and where they are loved and where they are emotionally, socially and physically comfortable simply because their care-givers are not of a certain heritage. The best interest of the child should be considered first, above the needs of the tribal community.

We believe that adoptive parents need well-defined protections. These are the citizens among us that have been willing to set aside personal comforts and take in society’s neediest children. Adoptive parents take many risks in doing this, the least of which is finances. People build their lives around family. Adoptive parents risk not only their own hearts, but the hearts of any birth children they have as well as the hearts of their extended family. These parents have an investment in the families they are building and have a right to know that they can put their names on the adoption paper with confidence. If we, as a society, continue to abuse these parents, we will find fewer people willing to take the risk of adoption and more and more children will languish in foster homes.

We also believe that early childhood attachment is critical to the healthy development of any child. Attachment theory shows that children who are separated from parents in early infant years will go on to suffer a range of behavioral, emotional and mental health problems. These effects carry into adulthood, affecting interpersonal relationships, leading to serious emotional disturbance and even having the neurobiological effects of childhood neglect that can equal and even surpass the impact of abuse and trauma. This research clearly indicates that the best interest of Veronica would be to stay with Matt and Melanie who are the only parents she has ever known.

The Cherokee Nation has argued that Indian children don’t experience “attachment” like non-Indian children do because they are more likely to attach to the tribe rather than the primary caretakers. The problem with these studies is that they are based on a sample of children, in the 1970s, who were removed from their families (with whom they were bonded and attached) as children, not newborns. Most were put into foster homes or institutions before being adopted and placed in homes that had no interest in supporting their native heritage. Many of these children came from homes with problems of alcoholism and conflict and were often abused in their homes of origin as well as in their foster and adoptive homes. Aren’t these issues more likely to be the root of the problem? Yet, these factors are not given any weight by researchers as contributing to these outcomes.

More recently, some researchers are acknowledging that other factors may have contributed to these outcomes and that positive Native Transracial Adoptions are possible. This turning tide by researchers confirms “that the defining problem of Native Transracial Adoption has been misdiagnosed and the core problem is not identity or a lack of it, but racism, exacerbated by isolation and abuse in any form, which are more likely the sources of the problematic outcomes of Native Transracial Adoption.”

Most importantly, this research does not apply to Veronica’s case. Veronica was not removed from her existing Indian family. There was no disruption of the family unit – the only family unit she knows is the one in which she resides in with Matt and Melanie. She was not institutionalized or placed in foster homes or abused. She was placed with a loving adoptive family whom she has been with from birth. Furthermore, Matt and Melanie are aware and appreciative of her Native American ancestry and fully committed to providing guidance and opportunities to support her heritage.

Even with significant relationship with Indian tribal culture, forced application of ICWA runs afoul of the Constitution in three ways:

  1. It impermissibly intrudes upon a power ordinarily reserved to the states.
  2. It improperly interferes with Indian children’s fundamental due process rights.
  3. On the sole basis of race, it deprives them of equal opportunities to be adopted that are available to non-Indian children.

We understand the premise of this law was to protect children in dangerous situations; however, in Veronica’s case this federal law has been used inappropriately. The intent of Congress under ICWA was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902). That was not the case for Veronica Rose.