War of Words: ICWA Hearings Reignite Ancient Clash Over Indian Children, Part 1

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Melissa Clyde, Navajo Nation, attended the hearings in Albuquerque with her 18-month-old daughter, Nevaeh Asdzaan Atsa Woods

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.

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John Echohawk, founder and executive director of the Native American Rights Fund, provides testimony on the new ICWA rules in Tulsa on May 14. (Courtesy Frank Duncan)

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.

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.

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A number of people testified at public hearings on ICWA.

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 duringAdoptive Couple v. Baby Girlin 2013. But it flared anew earlier this year after the Bureau of Indian Affairs published the guidelines in February. The AAAA immediately issued apress releaseon March 12 crying foul.

Last Wednesday, in advance of the final public hearing in Tulsa, the AAAA issued anotherpress releasechallenging 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 theirwebsite, 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 gameemployed 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.

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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 watchingOglala v. Van Hunnikin 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 strongAmerican 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.