Why the Congress Must Amend the Indian Child Welfare Act

by Dylan Byrd

The Supreme Court’s decision in Adoptive Couple v. Baby Girl dismantled vital protections for Native American children by unfairly limiting important federal statutes.[1]

In the 1970s, the federal government was in the process of removing one out of every three Native American children from their tribes and placing them in mainstream American institutions, foster homes, or adoptive homes.[2] To the average American child, the 1970s were enigmatic of the first Hollywood blockbuster or the grand opening of Walt Disney World. To the Sovereign Nation, this particular decade threatened to cripple its millennial generation, vis-à-vis state agencies’ removal of almost 40 percent of young Native children from their families.[3] This trend illustrates the government’s systematic denial of opportunities for Native American children to participate in their historic cultures, ideals, and experiences.

The federal government’s degradation of Native American sovereignty has historically proven to be a self-fulfilling prophecy. According to Patrice Kunesh, co-director of the Center for Indian Country Development, the factors underpinning the notion that Native parents neglected Native children were: poor housing, lack of electricity or plumbing, and chronic health problems.[4] These issues were largely byproducts of the federal government’s systematic appropriation of Native resources however, and were not endemic to Native Country as a result of its own independent efforts.[5] Examples of anti-Native activism have included: the acquisition and redistribution of Native land rights without just compensation; a dearth of federal subsidies for basic Native subsistence, requiring many children to live on “eleven cents a day”; and, the government’s refusal to accredit, or generally acknowledge, the quality of the Native public school system.[6]

Some scholars maintain that the federal government intentionally gutted infrastructural protection for Native Americans, to create and foster the “reservation” environment for political purposes.[7] This undertaking was predicated on the desire to assimilate Native Americans into mainstream American culture. Thus, under the guise of “fighting unfit parenthood,” state agencies removed an unprecedented portion of underprivileged Native children from their tribes and families.[8] These agencies operated under the justification of combating widespread financial dependence, poverty, and disease—all of which were arguably caused by the state agencies themselves.[9]

After centuries of degradation, Congress began to realize the extent of the damage in the 1970s. The 1978 House Report revealed that thousands of Indian children had been forcibly removed from their homes at an “incredibly disproportionate rate” to the non-Indian population.[10] In response to this imminent subversion of the Native way of life, Congress passed the Indian Child Welfare Act in 1978 (ICWA).[11]

The protections in ICWA immediately made positive steps to protect Native children from disproportionate relocation. Native families finally had preference in determining the rights of their children, and were given first claim to any children that had been separated from their tribes. In addition, ICWA § 1902 provided for “the placement of [Native] children in foster or adoptive homes which reflect the unique values of [Native] culture, and by providing for assistance to [Native] tribes in the operation of child and family service programs.”[12]

Within four years however, the Kansas Supreme Court had worked within the confines of ICWA to dismantle vital safeguards, via In re Adoption of Baby Boy L.[13] In this case, the court ruled that ICWA did not apply in certain situations when the child “had not been physically removed” from its Native American parent(s).[14] This became known as the Existing Indian Family Exception. Where a Native father lacked the resources to prevent his child from being given away by the child’s non-Native, custodial mother, the child subsequently lost all legal and physical connection to his or her Native tribe.[15] In an impoverished Sovereign Nation, this decision opened up a gaping backdoor on common sense policy.

Refreshingly, the majority of state jurisdictions considered and rejected the Existing Indian Family Exception—until the Supreme Court recently granted certiorari to an emblematic case, Adoptive Couple v. Baby Girl.[16] The case concerned an infant girl who had been separated from the plaintiff, her Native American father, shortly after birth; and subsequently, the non-Native, custodial mother had given up the child up for adoption.[17] Later, when the child was 27 months old, the plaintiff wanted to remove his toddler from her foster family and place her into tribal custody for the first time.[18]

The majority opinion of Adoptive Couple drew upon the Existing Indian Family Exception, in a regressive move, and sided with the adoptive parents against the Native father.[19] Further, the opinion limited the application of the ICWA to provide relief only for parents who had custody of the child at some point prior to the proceedings.[20]

Thus, where Native, biological fathers had been unable to meet their children prior to their adoption, those fathers effectively lost all rights to the children, and those children lost all legal and physical connection to their tribe. Justice Sotomayor, in her dissent, argued that the decision from Adoptive Couple would ultimately deprive many deserving parents of ICWA protection, which would undermine the overriding purpose of the legislation.[21]

There is a high likelihood in modern America that any given Native child will have a non-Native parent, such as the child in Adoptive Couple.[22] Where a Native father may not be part of his child’s life before the birth, due to a conscious choice or perhaps a lack of monetary and legal resources, he may still want to ensure that his child remains connected to his tribe. Without an amendment to ICWA, that connection may well be lost forever.

Some commentators lauded the Adoptive Couple decision, arguing that many Native American children are suffering grievous physical and emotional harm on reservations and their removal remains a net positive.[23] National data shows that Native youth face higher rates of poverty, teenage suicide and substance abuse.[24] While the U.S. child mortality rate for children ages 1–14 has gone down by 9 percent since 2000, it has increased by 15 percent among Native children.[25]

However, these assertions are paradigmatic of what is wrong with the mainstream perspective on the Sovereign Nation. The widespread poverty, dependence, and disease witnessed on reservations has stemmed directly from abrasive federal policies, like the Existing Indian Family Exception, which have ironically robbed the Native Americans of their capacity for sustainable independence. ICWA was designed to preserve the cultural heritage of children systematically upended by ill-guided attempts to assimilate Native children into mainstream culture.

Adoptive Couple’s application not only prevents deserving parents from utilizing ICWA, but it has become yet another justification for the removal of Native children from their cultural heritage. In the absence of a revised ICWA, tribes today face the same issues they confronted in the 1970s: the systematic elimination of their children from participation in future generations of Native American leadership and development.

[1] 133 S.Ct. 2552 (2013).

[2] H.R. REP. No. 1386, 95th Cong., 2d Sess. (1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7531 [hereinafter “House Report”].

[3] Id.

[4] See Patrice H. Kunesh, Transcending Frontiers: Indian Child Welfare in the United States, 16 B.C. Third World L.J. 17, 23-24 (1996).

[5] Id. at 24.

[6] Inst. for Gov’t Research, The Problem of Indian Administration 7, 11-13 (1928) (Lewis Meriam, Technical Director).

[7] Kunesh, supra note 3, at 24.

[8] Id.

[9] Id.

[10] Id.; House Report, supra note 1, at 7531.

[11] 25 U.S.C. §§ 1901-1963 (1988).

[12] 25 U.S.C. § 1902 (2012).

[13] 643 P.2d 168 (Kan. 1982).

[14] Id. at 224.

[15] Dan Lewerenz & Padraic McCoy, The End of “Existing Indian Family” Jurisprudence: Holyfield at 20, In the Matter of A.J.S., and the Last Gasps of a Dying Doctrine, 36 Wm. Mitchel L. Rev. 684, 686 (2010).

[16] 133 S. Ct. at 2554; Lewerenz, supra note 15, at 687-88.

[17] Adoptive Couple, 133 S. Ct. at 2554.

[18] Id.

[19] Id. at 2571.

[20] Id.

[21] Adoptive Couple, 133 S. Ct. at 2573 (Sotomayor, J., dissenting).

[22] National Research Council (US) Committee on Population, The Demography of American Indian Families, Changing Numbers, Changing Needs: American Indian Demography and Public Health, 9 (1996), https://www.ncbi.nlm.nih.gov/books/NBK233091/

[23] Clint Bolick, The Wrongs We Are Doing Native American Children, Newsweek (Nov. 2, 2015, 3:48 PM), http://www.newsweek.com/wrongs-we-are-doing-native-american-children-389771.

[24] Lisette Austin, Serving Native American Children in Foster Care, Ct. Appointed Special Advocates for Children 6 (2009), http://nc.casaforchildren.org/files/public/community/judges/July_2010/Connection_Winter2009.pdf.

[25] Id.