Every level of government is the U.S. has laws on the books that are inconsistently enforced.
On Thursday, the 43rd Symposium on the American Indian at Northeastern State University conducted a seminar on a law that tribal governments across the U.S. would like to see enforced more rigorously.
“With the Indian Child Welfare Act, we can look at the glass as half-empty or half-full,” said Dr. Diane Hammons, assistant professor of criminal justice at NSU. “We can say we’ve made strides and come a long way, or we can say there is still a lot of work to be done. There are a lot of judges and adoption agencies and attorneys who don’t know ICWA exists.”
The ICWA of 1978 is intended to reduce the adoption or foster placement of Native American children with white families, which could result in the erosion of tribal membership and culture. The act was passed in response to the appallingly high rate – estimates in the 1970s were as high as one third – of American Indian children living on non-Native households. Though in force for decades, the law frequently goes unconsidered in court.
Panelists were Chrissi Ross Nimmo, assistant attorney general for the Cherokee Nation, and attorney Angel Smith – both veterans of the “Baby Veronica” case of 2013. Hammons served as moderator.
Smith mentioned she was the same age as the ICWA, and that it affected her upbringing, during which she suffered abuse, was in foster care, and “moved 40 times.” She stayed with a caring foster family and maintains contact, but she always believed her place was among the Native collective.
“My birth parents’ home was not a place for a child to be,” she said. “But I had extended family that stepped in. These are not people we would describe as immediate family, but they are absolutely community and tribe. Walking between a Native on non-Native family – identity issues absolutely exist. The ICWA is in place to help with some of the identity or maladaptive issues.”
Referring to the case of Veronica Brown, who was returned to her adoptive parents by the U.S. Supreme Court over the objections of the biological father and the Cherokee Nation, Smith said she believed the decision would establish little precedent because “the consideration of the child’s rights are not reflected in that ruling.”
Nimmo discussed the Baby Veronica case at some length, and said adoptive families sometime pursue legal delays.
“The idea is that the child has been in the home for one, two, three years and that removing them would be harmful,” Nimmo said. “The response is you can’t use the fact that you’ve been violating the law for three years to have a court rule in your favor.”
In overturning the decision of the South Carolina Supreme Court, the U.S. Supreme Court ruled that Veronica’s father had not pursued paternity at or before the girl’s birth – which Nimmo considered unreasonable – and did not enjoy ICWA considerations. Nimmo said the court seemed to have difficulty fathoming Indian culture.
“The Supreme Court said the grandmother didn’t formally petition to adopt, so no preference could be applied,” she said. “That finding rocked Indian country. Family members don’t usually formally petition for adoption or placement. They show up in court and say ‘I’m Grandma,’ and the court orders DHS to assess Grandma.”
Application of the ICWA was also questioned by the court because the girl’s Cherokee ancestry was distant.
“This became a big issue, even though we repeatedly explained that the Cherokees have no blood [requirement],” Nimmo said. “It rubbed them the wrong way that the Cherokee Nation wanted to claim Veronica as a Cherokee and she was only one percent Indian. My personal opinion is that’s why we lost this case. These are the greatest legal minds in the nation, but they don’t know anything about Indian country, tribes, citizenship, community – tribes can choose members who don’t have any Indian blood.”
Because of the Baby Veronica case and because the ICWA is enforced with such erraticism, there has been talk of amending the act, which Nimmo said has received a cold response from tribes.
“The big legislative fix would be for Congress to amend the ICWA,” Nimmo said. “Tribes are really opposed to that, because if we open it up for amendment, the opposition will come in and demand their changes be addressed as well.”
A 19-minute film about the ICWA is posted on YouTube. Search for “ICWA educational resource video.”
Nimmo said those who support efforts to enforce the ICWA can write to firstname.lastname@example.org and include “ICWA” in the subject line. They can also write to Ms. Elizabeth Appel, Office of Regulatory Affairs and Collaborative Action, Indian Affairs, U.S. Department of the Interior, 1849 C Street, NW MS 3642, Washington, D.C., 20240.