On Monday, February 3rd, four prominent Native American groups called on the Justice Department to initiate an investigation into the child welfare and adoption systems, saying violations of civil rights run rampant, according to a prepared press release.
National Indian Child Welfare Association Executive Director Terry Cross presented a letter during a meeting at the U.S. Attorney’s Office in Portland hosted by Department of Justice Acting Attorney General for Civil Rights Jocelyn Samuels.
In the letter addressed to Acting Assistant Attorney General Samuels and Deputy Assistant Attorney General Hill of the U.S. Department of Justice, the four groups requested that the Civil Rights Division promptly investigate widespread non-compliance with the Indian Child Welfare Act, and unlawful practices concerning Native American and Alaskan Native children by public and private child welfare and adoption systems.1
The letter follows the recent high-profile custody battle over a Cherokee girl known as “Baby Veronica,” which pitted the interest of the child’s natural father against those of an adoptive white couple. The U.S. Supreme Court overruled custody rulings in the father’s favor, freeing the girl for adoption by a white South Carolina couple. The announcement also comes amidst a lawsuit alleging violations of federal law governing foster care and adoptions.
The organizations, which include the National Indian Child Welfare Association, the National Congress of American Indians, the Native American Rights Fund and the Association on American Indian Affairs, noted in their letter that:
despite all the protections provided by ICWA, each year thousands of parents, grandparents, aunties, uncles, and child advocates reach out to the National Indian Child Welfare Association (NICWA) desperate for help. Their rights under ICWA and the Constitution continue to be violated by state child welfare and private adoption systems. NICWA frequently hears stories of adoption agencies ignoring the tribal membership of children, of state attorneys failing to provide notice to a tribe when a child is taken into custody, of child welfare workers sometimes knowingly placing children outside ICWA’s placement preferences, and of judges denying tribal representatives a presence in the court room. NICWA also often hears stories of Guardians ad Litem scoffing at the importance of Native culture, state workers demeaning AI/AN parents and traditional ways of parenting, and attorneys using professional networks to encourage other attorneys to purposefully circumvent the “ridiculous” or “unnecessary” adoption requirements of ICWA.
Stories similar to these have just recently garnered media attention and brought a spotlight onto the injustices that AI/AN families have faced for decades in private adoptions and in state child welfare proceedings. Recent news stories have covered a variety of topics from the placement of AI/AN foster children in white homes when relatives are ready and able to care for the children and Native licensed foster care homes stand empty, to the secreting away of children across state lines without the proper authority for the purpose of avoiding ICWA in adoption proceedings, to the thwarting of fit biological fathers willing and able to parent their children in child welfare and private adoption proceedings.
The letter continues on to say: “These stories highlight patterns of behavior that are at best unethical and at worst unlawful. Nonetheless, although these civil rights violations are well-known and commonplace, they continue to go unchecked and unexamined. So long as this is the case, Native children and families will continue to be victims of the very systems designed to protect them.”
The letter adds that non-compliance with the ICWA harms children, and that: “Attorneys, social workers, and judges cannot, and should not, ignore federal law and the civil rights of AI/AN children, parents, and families. When ICWA is not followed, the cultural bias and prejudice present in the child welfare system goes unchecked.”
On January 28, the U.S. District Court for the District of South Dakota in Rapid City ruled that Oglala Sioux Tribe v. Van Hunnik would proceed to trial, and certified the case as a class action suit. In his ruling certifying the case, judge Jeffrey L. Viken wrote: “The named plaintiffs, on behalf of the proposed class, seek a declaration that defendants’ policies, practices or customs amount to or result in deprivations of their constitutional and statutory rights. Whether these policies, practices and customs violate plaintiffs’ procedural rights under the Fourteenth Amendment and ICWA is a common legal question across the proposed class.”
“The American Civil Liberties Union filed the lawsuit in March 2013 along with the ACLU of South Dakota and Dana Hanna of the Hanna Law Office in Rapid City. The lawsuit claims that Indian children are being removed from their homes in hearings that last no more than a few minutes, in which parents fail to receive a copy of the petition against them or have a chance to present evidence,” an ACLU press release explains.2
“This is an important step forward for the rights of Indian families and tribes,” said Stephen Pevar, senior staff counsel with the ACLU’s Racial Justice Program. “We are grateful to Chief Judge Viken for taking the time to examine the complex issues raised in this case and for his sensitivity to the goals of the Indian Child Welfare Act.”
Of related interest, The Inquiry into the Circumstances Surrounding the Death of Phoenix Sinclair, based in Manitoba, released its report to the public on January 31, 2014. That report found, among many other things, that: “In Canada, Aboriginal families are involved with the child welfare system, and their children are in care of child welfare agencies, in disproportionate numbers. Studies suggest that high rates of Aboriginal children in care, suicides, domestic violence, and overall loss of culture are not individual problems: they affect entire communities and require community healing to prevent further intergenerational damage.”
1. With the wave of privatization and outsourcing of state and municipal child welfare services it is difficult to say with precision where one begins and the other ends. See for example Amy C. Vargo, M.A., Mary Armstrong, Ph.D., Neil Jordan, Ph.D., Mary Ann Kershaw, B.S.,Jennifer Pedraza, B.A., and Svetlana Yampolskaya, Ph.D., Report to the Legislature: Evaluation of the Department of Children and Families Community-Based Care Initiative Fiscal Year 2004-2005, University of South Florida, (2006) (“Even before the publicly-funded safety net was developed, sectarian and non-sectarian agencies created and funded various services analogous to today’s child protection, congregate care, and foster care services. Since the emergence of publicly-funded child welfare in the 1880s, state and local governments have paid private, voluntary agencies to provide services. This is sometimes referred to as privatization”). See also my article of Sept 4, 2013, ICWA: Still Under Siege by Adoption Industry for a closer look at Bethany Christian Services, the private sectarian adoption agency that plays a prominent role in the latest attacks against the ICWA.
2. To the extent that “children are being removed from their homes in hearings that last no more than a few minutes, in which parents fail to receive a copy of the petition against them or have a chance to present evidence,” this can fairly be said to be the rule – rather than the exception – in a majority of child welfare cases regardless of the family’s ethnicity. It is the disproportionality of Native American children in the system that sets the case apart. See the article of August 30, 2013, ICWA – Adoptive Couple v. Baby Girl – No Room for Exceptions for an analysis of the disproportionality with links to sources.