ICWA – Adoptive Couple v. Baby Girl – No Room for Exceptions


By now, family advocates are aware that on Tuesday, June 25, 2013, the United States Supreme Court issued a ruling that strikes a blow against the very heart of the Indian Child Welfare Act. In a 5-4 ruling drafted by Justice Samuel Alito, the court ruled that under the provisions of the Indian Child Welfare Act, a child, widely known as Baby Veronica, does not have to live with her biological Cherokee father.

Writing in an Indian Country article, Rob Capriccioso explains: “The child was taken from her adoptive white parents’ home after living there for the first two years of her life. Dusten Brown, a Cherokee Nation citizen, prevented the adoption, saying ICWA applied in his case. The South Carolina courts agreed, and the child, now 3 1/2, has lived with Brown since his challenge.”

Broad Support

Support for the position to uphold the protections of the ICWA was characterized as “historic,” a Wall Street Journal column explained.

U.S. Solicitor General Donald Verrilli and 19 states and state attorneys general were joined by a large array of groups who submitted 24 separate briefs in all. Not one state submitted briefs in support of the Adoptive Couple.

The Journal further explains that: “The overwhelming support included 17 former and current members of Congress; Casey Family Programs, the Children’s Defense Fund, and 16 other child welfare organizations; the American Civil Liberties Union; broad coalitions of psychology associations, child advocates, and legal experts; adult Native American adoptees; and tribal amicus briefs which include 333 American Indian tribes.”

“it’s an attack on tribal sovereignty through the children,” said former U.S. Sen. James Abourezk, according to an article in the Argus Leader. “I can’t believe they did this.”

The former Senator is certainly in a good position to know what the legislative intent of the ICWA truly was, as he led the Commission that unearthed evidence of widespread destruction of Indian families by child welfare agencies in the United States. The House Report that accompanied the ICWA reads, in part:

The disparity in placement rates for Indians and non-Indians is shocking. In Minnesota, Indian children are placed in foster care of in adoptive homes at a per capita rate five times greater than non-Indian children. In Montana, the ratio of Indian foster-care placement is at least 13 times greater. In South Dakota, 40 percent of all adoptions made by the State’s Department of Public Welfare since 1967-68 are of Indian children, yet Indians make up only 7 percent of the juvenile population. The number of South Dakota Indian children living in foster homes is per capita, nearly 16 times greater than the non-Indian rate. In the State of Washington, the Indian adoption rate is 19 times greater and the foster care rate 10 times greater. In Wisconsin, the risk run by Indian children of being separated from their parents is nearly 1,600 percent greater than it is for non-Indian children. Just as Indian children are exposed to these great hazards, their parents are too.

The House Report continues on to say: “In some instances, financial considerations contribute to the crisis. For example, agencies established to place children have an incentive to find children to place.” More to the point:

Indian community leaders charge that federally-subsidized foster care programs encourage some non-Indian families to start “baby farms” in order to supplement their meager farm income with foster care payments and to obtain extra hands for farmwork. The disparity between the ratio of Indian children in foster care versus the number of Indian children that are adopted seems to bear this out. For example, in Wyoming in 1969, Indians accounted for 70 percent of foster care placements but only 8 percent of adoptive placements. Foster care payments usually cease when a child is adopted.

Following National Public Radio’s 2011 report Native Foster Care: Lost Children, Shattered Families, which covered the state of Native American foster care in South Dakota, reporting significant violations of the Indian Child Welfare Act by the state’s Department of Social Services, six members of the United States House of Representatives asked then-Assistant Secretary for Indian Affairs Larry Echo Hawk to investigate the claims, report on their veracity, and outline what steps, if any, the Bureau of Indian Affairs would take to rectify the situation.

The Coalition of Sioux Tribes for Children and Families described what happened next in a report issued in late January, 2013:

To our knowledge, the BIA has not undertaken action to investigate and verify the NPR report’s claims. Furthermore, the BIA’s subsequent promise to sponsor a summit on Indian Child Welfare in South Dakota in early 2012 has not been fulfilled. Therefore the members of the Coalition of Sioux Tribes for Children and Families& = which is composed of the ICWA Directors of South Dakota’s nine American Indian tribes – have taken it upon ourselves to respond to the Congressmen.

April 16, 1967 joint press release issued by U.S. Department of Interior and the Bureau of Indian Affairs touting the progress of the Indian Adoption Project.

That the BIA failed to take action should come as no surprise to students of recent history.

“The boarding school era is the first generation of child removal and assimilationist welfare policy. The national Indian Adoption Project of 1958-1968 represents the second generation of child removal and assimilationist welfare policy,” explains Lila George in the industry journal Multicultural Social Work. The transformation was made possible by an alliance between the Bureau of Indian Affairs and the Child Welfare League of America.

Citing government documents, George explains that in 1957, the BIA “contracted with the Child Welfare League of America to operate a clearinghouse for the interstate placement of Indian children with non-indian families.” This contract was necessary because the BIA was not authorized to engage directly in adoption. Commissioned by Congress, the BIA was to act in the best interest of Tribes, hence a direct role in the out-of-culture adoptions would have readily been identified as a violation of this trust.

Thus was born the Indian Adoption Project, which George describes as “a fiscal collaboration between the Bureau of Indian Affairs and the Child Welfare League of America.” The project formalized its operations in 1958, setting about the task of providing adoptive placements for American Indian Children whose parents were deemed unable to provide a “suitable” home for them. The Bureau of Indian Affairs hired social workers to place American Indian children in long-term care with non-Indian families.

The Search for Reliable Data

A Report To The US Congress From The Coalition Of Sioux Tribes For Children And Families examined NPR’s reporting point-by-point, demonstrating not only that Native children are indeed represented in South Dakota’s foster care system in vastly disproportionate numbers, but that there also exists a clear and specific economic motive underlying the state’s child removal polices, precisely as NPR had reported:

Nearly $100 million in federal funding is being sent to South Dakota to administer foster care each year. This includes $55 million for Children’s Services, $48 million to fund foster children’s health care, and $4 million for administration. These federal monies constitute a significant portion of state expenditures, and, according to the healthcare consumer nonprofit organization Families USA, they have “a positive and measurable impact on state business activity, available jobs, and overall state income.” All this demonstrates a strong financial incentive for state officials to take high numbers of Native American foster children into custody. Anecdotal evidence and testimony confirm that this incentive motivates the state’s actions.

By no means is South Dakota the only state in which Native children are disproportionately represented. However, finding truly accurate figures is often made difficult by the absence of complete data. In a 2009 report from the University of Wisconsin, Racial Disproportionality in Wisconsin’s Child Welfare System, researchers noted that in 38,151 instances — slightly more than one half (50.3%), the ethnicity of the child was listed as either unknown, or the corresponding field was simply left blank. The researchers explained that one result was that: “American Indian children are overrepresented in foster care, but we do not have sound data about their treatment in child welfare beyond investigation.”

The Minnesota Child Welfare Disparities Report, released in 2010, provides some additional statistics regarding the disparities in the child welfare system. The study found that American Indian children were more than eight times as likely to be subject of a neglect report, and that American Indian children were placed in out of home care in 2008 at a rate “more than twice that of any other group, and [were] more than 12 times more likely than a white child to spend time in placement.” American Indian children were as high as “six times more likely to be subjects of child protection assessments and investigations than a White child.”

Among the more recent sources on disproportionality is a study released by the National Council of Juvenile and Family Court Judges in May 2012. The study found that: “Across the United States, Native American children are overrepresented in foster care at a rate of 2.1 times their rate in the general population. While not all state show disproportionality, 21 states do have some overrepresentation. Twenty-seven percent of the states that have overrepresentation have a disproportionality index of greater than 4.1. In Minnesota, the disproportionality is index 11.2, in Washington State it is 5.6.”

picAs of August 2012, the disproportionality rate for removal of native children from their homes in the United States had increased in most states relative to the previous five year period.

BJ Jones, director of the Tribal Judicial Institute, provides some of the more recent data in chart form in a worksheet released in August 2012. Jones documents some of the variances between states. The disproportionality rate for removal of native children has increased in most states over last five years. In Minnesota – An Indian child is 11.6 times more likely to be removed; Washington – 6.9 times more likely; Idaho 6.6; Nebraska 6.8; Iowa 5.4; Alaska 3.1; Montana 3.8; and in South Dakota, Native children are at risk of removal that is 3.9 times higher than the general population.

The Supreme Court’s ruling was particularly disappointing inasmuch as it apparently failed ro take these trends into account. However, the decision was narrowly tailored to the facts of one particular case. The ICWA is still alive and well. Now, if only we can get some more States to follow a federal law that has been in effect since the mid-1970s, some true progress would be made. The same may reasonably said of the Adoption Assistance and Child Welfare Act of 1980, which requires agencies to provide “reasonable efforts” to reduce the number of innocent families who are impacted by wrongful child removals.

A Broader Perspective

A literature review commissioned by the First Nations Child & Family Caring Society of Canada explains that during the sixties-scoop era, many Abpriginal Canadian children were rounded up and transported across the US/Canadian border by train for purposes of adoption by well-to-do white couples in the United States. A few words about how these children were rounded up for residential schooling or out-of-nation adoption are in order. As the review explains:

The round up of children was considered a horrendous, tragic affair. In many cases, the RCMP also assisted by arriving in force. They encircled reserves to stop runaways then moved from door to door taking school age children over the protests of parents and children themselves. Children were locked up in nearby police stations or cattle pens until the round up was complete, then taken to school by train. In these schools, children were often segregated by gender, received inadequate education, forced to work, and suffered beatings for speaking their Native language, humiliated and ridiculed and sexually abused. Children were taught to hate their Native culture and as a result became “cultural refugees.” Residential schools are an example of the most unmitigated form of cultural racism carried out by the Canadian governments and missionaries in their attempts to “civilize” Aboriginal peoples.

Through residential schools and its deliberate assault on the Aboriginal family, First Nations were vulnerable to the next wave of interventions of “child abductions” sanctioned by provincial child welfare laws. By the 1960s child welfare agencies successfully replaced residential schools as the preferred system of care for First Nations children. Many of these apprehended children were sent to the United States to be adopted as a result of aggressive American adoption agencies. For example, in 1981, the statistics reveal as high as 55% of the Native children in care in Manitoba were shipped out of the Province for adoption.

The problem may have worsened since. “In Manitoba approximately 80 percent of the children and youth involved with child and family services are Aboriginal.” Michele McBride, BC Children and Youth Review, reports in Report on Child Advocacy and Complaint Resolution Process, 2006, noting also a generalized “fear of retribution,” and advocates having fear of being “black listed by the Ministry if they speak out.”

The number of on-reserve child removals continues to rise in Canada. Source: Report of the Auditor General of Canada to the House of Commons, Chapter 4, First Nations Child and Family Services Program — Indian and Northern Affairs Canada, May 2008.

What is clear is that the numbers of on-reserve children removed from their homes has risen precipitously over the last few years. A report by Canada’s Auditor General points out that “between 1997 and 2001 there was a rapid increase in the number of on-reserve children placed in care. Over this period, the total number of children in care increased by 65 percent, from 5,340 to 8,791 children. This number has remained around the same level since then. At the end of March 2007, there were about 8,300 on-reserve children in care, a little over 5 percent of all children aged from 0 to 18 living on reserves. We estimate that this proportion is almost eight times that of children in care living off reserves.”

Canada’s John Beaucage, Aboriginal Advisor to the Minister, issued a report in July of 2011 which states that according to federal government statistics:

over 11,000 Status Indian children were adopted between the years of 1960 and 1990. It is believed that the actual numbers are much higher than that. Of these children who were adopted, 70 per cent were adopted into non-Aboriginal homes. According to the department’s reports, a substantial portion of these adoptees face cultural and identity confusion issues as the result of having been socialized and acculturated into a Euro-Canadian middleclass society.

In short, not even the BIA’s unholy relationship with the Child Welfare League of America could sate America’s appetite for “nearly white” adoptable children. What is abundantly clear is that few adoptions up to the mid-1970s in any developed nation involved an uncoerced and freely given relinquishment of children by their mothers, regardless of whether they were on-reserve mothers or poor, young, and unmarried white women who had their babies coerced from them by social workers in maternity homes and hospitals.

raven sinclairRaven Sinclair described the “obscene marketing of Aboriginal children” with adoption being promoted so as not to draw attention to government policies of assimilation.

“Economic incentives for newly established child welfare agencies fit well with ongoing government political agenda towards Aborginal people,” Raven Sinclair of the University of Regina explains in an article entitled “Identity lost and found: Lessons from the Sixties Scoop.” Citing Marie Adams, Sinclair argues that the “obscene marketing of Aboriginal children had stopped in the 1960s and 70s. These children were marketed in newspapers and on local television, but it was done in a way that did not draw attention to the government policy of assimilation.” Rather, adoption was promoted as a way to provide a loving and secure home for disadvantaged children.

As for Canada today, one ought not fall into the intellectual trap of believing that because the “Sixties Scoop” era as it has been traditionally defined has ended, that all is well. Sinclair writes that “given current child welfare statistics, the “Sizties Scoop” has merely evolved into the “Millenium Scoop” and aboriginal social workers, recruited into the ranks of social services and operating under the umbrella of Indian Child and Family Services, are now the ones doing the “scooping.”

Wolves in Sheeps Clothing

Being “almost white” for purposes of adoption was not so tidy a distinction to be made in Australia. Just as in the US and Canada, when the assimilation of an excessive number of Aboriginal children threatened to become a thorny political issue, a new bureaucratic layer with a typically benign-sounding name would be created and handed the task, leaving higher ranking government officials – the majority of whom would rather not have dirtied their hands with such matters – with layers of plausible deniability.

As Shurlee Swain most thoroughly explains in the 2013 Winter/Spring edition of Indian American Quarterly, by the late 1960s:

other branches of government were deeply implicated in schemes that sought to find adoptive parents for Indigenous children. Their motives were economic as well as assimilatory, but their appeal to prospective parents placed benevolence at the core. In 1951 the Department of Native Affairs in Western Australia established an adoption program that ran parallel to the program run by the Department of Child Welfare. Despite publicity that consistently contrasted the safety of the white adoptive home with the risks faced by infants left in Aboriginal communities, there continued to be resistance to the Child Welfare Department program because it allowed “coloured” children to slip into the white community. Similar attitudes in Queensland ensured that the State Children’s Department refused a 1960 request to place “light skinned”” children for adoption, leaving it to the Department of Native Affairs to establish its own scheme. The Northern Territory followed in 1964, extending its recruitment to southern states presumably because it was unable to find sufficient suitable applicants within its own jurisdiction. In Victoria, the Aborigines Welfare Board was one of the twenty- three agencies registered under the 1964 Adoption Act, and, Colin Tatz believes, it quickly became known that if you “couldn’t get a baby through a normal adoption agency, you went to the Aborigines Welfare Board.”


Judge Edwin Kimelman, Chief Judge of the Family Division of Manitoba’s Provincial Court, conducted a comprehensive review of the child welfare system, concluding in 1982 that: “No one fully comprehended that 25 per cent of all children placed for adoption were placed outside of Manitoba.”

Judge Kimelman found the apprehension and removal of Aboriginal children from their families, their communities and cultures by child welfare agencies was “routine,” and that the practice of out-of-province adoptions only compounded the outrage experienced by Native communities.

All parties were at fault, he explained, from the federal and provincial governments that failed to resolve their jurisdictional disputes involving the care of Aboriginal children, through the child welfare directors who lacked accountability to their Aboriginal clientele, and to “the child care agencies, both public and private, who failed to examine the results of their policies and practices and who failed to keep accurate statistical data; the Native organizations who remained too silent, too long, before demanding control of their children.”

His report, No Quiet Place repeatedly referred to the cultural misconceptions held by child care workers about Aboriginal people and the way they raised their children. “Cultural bias in the child welfare system is practised at every level from the social worker who works directly with the family, through the lawyers who represent the various parties in a custody case, to the judges who make the final disposition in the case,” he explained. The Judge most eloquently summarized:

It would be reassuring if blame could be laid to any single part of the system. The appalling reality is that everyone involved believed they were doing their best and stood firm in their belief that the system was working well. Some administrators took the ostrich approach to child welfare problems – they just did not exist. The miracle is that there were not more children lost in this system run by so many well-intentioned people. The road to hell was paved with good intentions, and the child welfare system was the paving contractor.

The subsequent Report of the Royal Commission on Aboriginal Peoples revisited Judge Kimelman’s findings in 1996, concluding:

In 1982, no one, except the Indian and the Métis people really believed the reality — that Native children were routinely being shipped to adoption homes in the United States and to other provinces in Canada. Every social worker, every administrator, and every agency or region viewed the situation from a narrow perspective and saw each individual case as an exception, as a case involving extenuating circumstances. No one fully comprehended that 25 per cent of all children placed for adoption were placed outside of Manitoba. No one fully comprehended that virtually all those children were of Native descent.

Each individual case was an exception then, much as it is today. The Native child is determined to be “neglected,” and is “rescued” from her home to the “safety” of the adoptive parents. The rhetoric of child saving hasn’t changed very much over the years, but the funds are wired into the bank accounts of the adoption agencies with great haste, in this modern era.

That is why there must be no tolerance for “exceptions” made to the rule of the law.