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Chris and Anthony’s Story

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Johnston Moore (center) with his two boys during the Coalition’s July 2012 ICWA Teach-In

Told by Johnston Moore (Chris and Anthony’s Dad)
July 11, 2012 on Capitol Hill during the Coalition’s ICWA Teach-In

We became foster parents in Los Angeles County with the intent to adopt in April 2000. We are able to have biological children, but we had always felt a real burden for children who needed a home. So we decided to adopt from the foster care system. In July 2000, we got a call about two little boys, biological half-brothers, who needed a home for what could be as little as five days when they would have a court hearing, at which time they might be placed with relatives who may come forward for them. The boys were placed with us, and we fell in love with them right away. Chris, the older one was five years old, white, freckled, green-eyed, and very precocious. Anthony, the younger one, who had a different biological father than his brother, was four, half-Hispanic, dark hair and brown eyes, and very shy and fragile. Well, five days came, court came, and no relatives came.

When they were first placed in our home, our sons were doing incredibly well. In fact, their social workers, attorneys, therapist, and others all marveled at how well they were doing. Their social worker even commented that she had never seen foster kids and foster parents bond more quickly than we had with them. She was thrilled. So was their therapist. So were we and so were the boys.

As time moved forward in their case, it appeared no relatives were stepping forward to take them. They started talking to us about the possibility of adopting the boys. They told us it would likely be a fast-track adoption as the birth mother wasn’t complying with her case plan and no relatives were coming forward. They became more and more settled over time, and we began to feel like a real, permanent family. Anthony especially seemed to thrive, where once he had been so quiet and withdrawn, he gained confidence and came out of his shell. He smiled constantly.

Then, several months after they came to our home, a paternal relative of Chris’ came forward, seeking custody, as did his birth father. The relative said that the boys were part Native on their mother’s side. It was investigated, and sure enough, the boys were 1/16 Indian on their mother’s side. Their tribe was from northeastern Kansas. The boys knew nothing about the tribe. Of course we didn’t know what that all meant at the time, but we could tell by the reactions of the social workers and the boys’ attorneys, and the judge, that it couldn’t be good. I want to say one thing as an aside right now. I am telling this story not to disparage our sons’ birth relatives. In fact, though our custody battle was very intense and filled with anger at times, we get along great now and feel very blessed to have gotten to know them. The point of this story is not about them; rather, it is about the Indian Child Welfare Act (ICWA).

The case was moved from the judge who normally handled their hearings to the judge who handled all the ICWA cases. The social worker who marveled at how quickly and deeply we had all bonded was taken off the case and the case was given to a social worker in the Native American unit. Things seemed to start spinning out of control. Whereas we were so universally praised just weeks before for being the best placement for these kids, we were now told we were not fit to raise them. According to ICWA proponents, certain disaster loomed if we were to adopt them. I imagine that belief is what drove the Native American Unit’s social workers to work so hard to remove them from our home, going so far as to lie in court reports and on the witness stand on more than one occasion.

We began to dig deeper into the law. The more we read, the less made sense. Clearly Congress wasn’t referring to our boys when it passed the Act. That was quite evident from the language of ICWA. And yet, they were applying it, and they were saying since we were white, we couldn’t adopt them. It didn’t matter that Chris was 15 times more white than Indian. It didn’t matter that Anthony was 8 times more Hispanic and 7 times more white than Indian. The boys were Indian. We were white. That made us unfit. Period.

The relative who was fighting us for custody had had very minimal contact with our son in his now six years. Moreover, she is as white as we are. It didn’t make sense that she would be better under ICWA than we would be when ICWA was all about maintaining cultural and tribal ties. She certainly didn’t live according to tribal customs and culture.

Social workers who worked for L.A. County DCFS were required to have a master’s degree. The social workers in the Indian Unit were not required to have a master’s degree. That struck me as odd that our kids and others like them couldn’t expect the same level of service and competency from their social workers that other kids in the system received. I would call this discrimination.

We read that there are good cause exceptions to the placement preferences under ICWA. We asked the social workers about that. The head of the Indian unit testified under oath in court that the Indian unit doesn’t look at good cause exceptions. That made things seem hopeless. ICWA allows good cause exceptions to be considered, and yet, the social workers refused to consider them. Without them, we stood no chance of prevailing.

One of the things that made this so difficult is that we were told if the boys were not Indian, they wouldn’t have given the paternal relative serious consideration because the boys had been with us for so long, because she was only related to Chris and had originally expressed a desire not to take Anthony, and because she had come into the picture too late in the case for relatives to receive preference under state law. Yet, under ICWA, this case looked like a slam dunk in the relative’s favor.

We discovered that there was a little-known, and never before cited case in California that said de facto parents could be considered extended family under ICWA’s placement preferences. We had become de facto parents in the case. I told the Indian social workers about this ruling. They said they knew nothing about it. If they were the ones recommending placement for the children, shouldn’t they know that under California law, we could be considered?

We began educating the boys about their tribe and its culture. We traced their Indian genealogy back 200 years. My brother bought them books about Native culture and art. The boys didn’t care. They just wanted a loving, stable home. They told their social workers repeatedly they wanted to live with us. It didn’t matter. Visitation with the paternal relative began. She got the boys every weekend, from early Saturday morning until Sunday evening. The boys maintained that they wanted to stay with us. They told everyone who asked them. The social workers ignored their requests. They didn’t even report it to the judge.

We hired an attorney. We weren’t going to go down without giving this our best shot. I stayed up late into the night many nights researching ICWA, lobbying people, going up the ladder at DCFS, trying to find anyone who would listen to us. The boys’ therapist was very concerned what would happen to them if they left our home. He became more concerned when the relative told him her plan after she got custody was to split up the boys. We told the social workers she had said that. They never called the therapist to corroborate that claim, nor did they ever call him to find out if moving the children would be detrimental to their well-being. In fact, they never called him for anything. They did, however, eventually visit the boys’ birth mother in jail and tried to persuade her to change her preference. She wanted the boys to remain with us, and the social workers knew that her opinion might matter to the judge, so they pressured her to change her mind. She didn’t.

Anthony had a very difficult time with everything that was going on. He stopped smiling all the time. In fact, he hardly smiled at all anymore. He became very withdrawn. He started becoming sick before the court-ordered visits, throwing up on more than one occasion. Two days before a very pivotal court hearing, his attorney wanted to meet with him. He was five at the time. She interviewed him for a little while, in private, about his wishes for where he wanted to live. It was clear to him that this important decision would be made soon, and that he and his brother might have to leave our home. The following day, he got in trouble for something at home. During his time out, he scratched his face until it bled. He had never done that before, and he hasn’t done it since. Was the application of ICWA really in his best interests?

The judge was wise enough to see there was more than met the eye in our case. She ordered a 730 Evaluation – basically an independent party would interview all involved and make a placement recommendation based on what was best for our sons in light of ICWA’s placement preferences. It was similar to a bonding study.

The man who was doing the evaluation came to our home and interviewed us. He then took Chris out to a park to interview him. He brought him home and took Anthony to the same park. When Chris came back, he crawled up into my lap. I noticed his hands had marks on them from magic markers. I asked him about them. He said that the man had asked him to draw a picture of his family. I asked who he drew. He named my wife, me, Anthony, him, our foster daughter, and dog. When Anthony came back, he told a similar story. I told our attorney about it. Surely, we all agreed, that would look good to the court. These kids didn’t draw their blood relatives. They drew us. To these boys, we were their family.

When the evaluator’s report came in, he recommended based on ICWA, that the boys should be placed with the relative. He admitted in his report that the boys were clearly more attached to us, but it came down to his belief that under ICWA “blood is thicker than water.” We were outraged. If he believed that, then why bother with the evaluation? There was no point in it. Interestingly, he made no mention of the pictures in his report.

The case moved forward. We were scheduled to be in court on 9/11/2001, but court was canceled due to the terrorist attacks on the east coast. We continued to fight. Anthony broke his elbow on the playground at school one day. His doctor said he wanted him to stay home and take it easy that weekend, and not go on the visit to Chris’ paternal relative’s house out of town. The Indian social workers told us to ignore the doctor’s orders and make him go anyway. They questioned what right a doctor had to tell us he needed to stay home. It struck me as odd that children are removed from parents for failing to see to the medical needs of their children, and yet the co-supervisor of the Indian unit was telling us to ignore a doctor’s recommendation.

We were able to secure a meeting with the director of DCFS, who at the time had 56,000 children in her care. She listened to us for two hours. She was sympathetic. She asked the Indian social workers about the case. They had no answers. She directed them to do a best interest analysis on the boys, which they had never done. Eventually she took the case from the Indian unit. The therapist was finally contacted by DCFS. He told the worker that it would be extremely detrimental for the boys to leave our home. The boys’ birth mother, who had disappeared after her release from jail, resurfaced, which meant that she would be able to be in court to testify about her wishes for their placement. At the last minute, DCFS changed its recommendation and asked the court to let them remain with us.

There were nine attorneys in the courtroom when the case was finally heard in November and December 2001. Nearly every social worker from the Indian unit was there as well. The 730 evaluator was present. We saw him hug the head of the Indian unit before entering the courtroom. No wonder he had recommended what he did. As was later implied in the questions asked during his testimony, he had always recommended birth relatives in every ICWA case he had done. The birth mother and Anthony’s birth father both stated that they wanted the boys to stay with us. Since the mother was “Indian,” that gave the judge something to work with. The evaluator was questioned. At first, he seemed very smooth and confident. As the questioning went on, you could see him grow increasingly more uncomfortable. Eventually, our attorney asked him about the family pictures, the ones he had the boys draw in the park and then left out of his report. He was very reluctant to talk about them. They were in his file. He was told to take them out. The judge could see over his shoulder. She was horrified that he left them out of his report. The tribe, who intervened late, wanted the boys moved from our home. The therapist was questioned. He reiterated how harmful it would be to the boys to be moved from our home. The judge seemed to hang onto every word he said with great interest. The boys’ attorneys both argued in our favor. Ultimately, using good cause exceptions based on the birth mother’s wishes, the judge ruled in our favor. According to all the insiders in the case, ours was truly a miracle. Of course, the ruling was appealed.

Eventually, the boys’ mother, and Anthony’s father, signed away their rights, paving the way for us to adopt him. Because Chris’ paternal relatives continued to fight, his case plan became separated a bit from Anthony’s. In California, the adoptive child’s name changes to the adoptive parents’ name before the finalization. The summer before the adoption was finalized, we signed state paperwork that changed Anthony’s name. This was not lost on Chris, who was now seven. Seven times in a three-week period, he came to our door in the middle of the night with nightmares. Each of the seven nightmares was related to him being forced out of our home. In one, a character from a horror movie that had terrified him for years reached into the window and pulled him out of the house. In another, he and his brother were swimming in the ocean, surrounded by sharks. His brother was rescued. He was not. Was the application of ICWA really in his best interests? Is this what Congress intended to do to kids? Would child welfare organizations who support ICWA really argue that this is good for children? I hope not.

Of course, we did adopt our sons, though it took nearly three years from the time they were first placed with us. In spite of the fact that we were not considered an appropriate home for them, and in spite of the naysayers who say they should be placed according to ICWA placement preferences…or those who would say they are Split Feathers…they are doing quite well. Chris is 17 now and excels in music and theater at an arts high school. His GPA is about 3.5. Anthony is 16 and a star football player at a small private high school. His GPA is around 3.4. Both stay out of trouble…at least on the bigger issues. Both are amazing kids who have never once expressed a longing to get in touch with their native roots. We have taken them to powwows, visited their tribe’s reservation and taken them to Indian villages. They honestly don’t care. And their tribe has completely ignored them as well. Their adoption worker contacted the tribe more than once to try to get them enrolled. We contacted the tribe as well after the adoption in an attempt to stay in touch. No response. So much for wanting to maintain ties to “their children”.


Challenging ICWA
If any of you doubt the validity of my story, or if any of you question my sons’ well-being having lived in a non-Indian adoptive home for over twelve years, I invite you to speak with them personally. They are sitting here and are willing to talk to any of you. These are not Split Feathers. They are simply two multi-racial American kids who needed and deserved a loving, permanent and stable home environment, and they have thrived since getting one.

I know full well that there are supporters of ICWA in this room. I challenge any of you to look my sons in the eye and tell them the trauma they experienced due to ICWA was justified. Tell my son Chris that he is Indian and therefore it was okay for him to wake up in the middle of the night over and over completely terrified that he might be forced to leave our home. Tell my son Anthony that he is Indian and therefore it was okay for him to be so traumatized at the prospect of leaving the first people he had ever called mom and dad that he scratched himself and made his face bleed. Tell them it’s okay – I dare you. You know what? It wasn’t okay. And if you say it’s okay, then you have no business making decisions or recommendations or writing policy for any child anywhere.

After winning our case, we remained committed to helping more families and children in similar situations. We believe ICWA was passed with good intentions, but we also believe it is deeply flawed and needs to be looked at again.

The Indian Child Welfare Act makes the following Declaration of Policy:

“The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by…the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture….”

No one could argue that my sons’ birth family reflected the unique values of Indian culture. No one could argue that tribal relations and Indian cultural and social standards prevailed in their home before they came to us. The boys’ birth mother had no contact with the tribe. In fact, she didn’t even know the name of the tribe. Interestingly, the tribe had no contact with them, either. There was no effort on the tribe’s part to make sure this “Indian mother” was indeed raising up her “Indian boys” in the ways of the tribal culture. The truth is, the tribe didn’t even know her sons existed. Yet, according to ICWA, my boys were Indian children. This is because of ICWA’s definition of an “Indian child” which is the following:

“any unmarried person who is under age eighteen and is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe”

ICWA then goes on to define the “Indian child’s tribe” as the one “in which an Indian child is a member or eligible for membership or in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts.”

Note that in the case a child is a member or eligible for membership in more than one tribe, there is a tiebreaker system in place…the tribe that shall be considered the Indian child’s tribe for the purposes of ICWA is that tribe with which the child has the more significant contacts. This, to me, indicates that Congress, in passing this Act, had an understanding of Indian children that is far different from how the Act is being used to define Indian children in custody proceedings today. They were not talking about kids like mine.

Now, what does it mean to be eligible for membership in a tribe? Many tribes base their membership on blood quantum requirements. Some say you have to have at least a certain blood quantum in order to be eligible.

Many other tribes have no blood quantum requirement, but simply say you must be a descendant of a tribal member. The Cherokee Nation is one of those. The Cherokee Nation has been involved in many child custody proceedings with children who have very minimal amounts of Native American blood, and frankly, ICWA allows it to. I have a friend who is a social worker in California. She is enrolled in the Cherokee Nation. Her son, I will call him Kevin, will soon be enrolled as well. He is 1/1024th Cherokee. According to ICWA, Kevin is an Indian child, and if he were to go into the foster care system, he would be subject to its provisions.

Listen to this from a 1965 court case:

“Necessarily continued intermarriage with white persons would ultimately produce persons who were in no true sense Indians. At some reasonable point a line must be drawn between Indians and non-Indians, between those properly to be regarded as continuing members of the tribe, and those who are not.”

It sounds to me like our courts, in the years leading up to ICWA, would not anticipate ICWA applying to children like my friend’s son and yet ICWA would apply to him if he enters the system.

My daughter, who is 1/4 Indian, four times as Indian by blood as my sons, is not an Indian child and was not subject to the Act because her tribe, the Lumbee Tribe, is not federally recognized.

From time to time, a tribe will change its membership requirements. The Klamath Tribe recently held an online poll asking its members if the blood quantum requirement for membership should stay at 1/4, be reduced to 1/8, or reduced to 1/16. A child who is 1/16 Klamath, currently two generations removed from ICWA and not an Indian child, may suddenly find him- or herself an Indian child subjected to ICWA, and therefore have a secure and stable placement threatened, based on the results of an online poll.

Many of us who oppose ICWA do so on the basis that we believe it is discriminatory. It treats children of a certain race differently and it does so on the basis of their race. ICWA proponents argue that it is not the child’s race that subjects him or her to ICWA; it is his or her political status. That’s a technicality and means little to the child. Quoting the 1965 case again:

“It is plain the Congress, on numerous occasions, has deemed it expedient, and within its powers, to classify Indians according to their percentages of Indian blood. Indeed, if legislation is to deal with Indians at all, the very reference to them implies the use of “a criterion of race”. Indians can only be defined by their race.”

The bottom line is, even if you want to call it political status, that political status is based on blood, either by quantum or lineal descendancy. That political status, in other words, is rooted in the child’s race, and national origin. Our laws are consistent in this nation – people are not to be discriminated against based on their race or national origin.

So you can see that the definition of an Indian child, though it appears in the language of ICWA to be very clear and specific, is actually rather arbitrary in practice.


Best Interests of the Child
The overriding theme in child welfare in the United States is that the system and the decisions the system makes need to keep the best interests of the child as their main focus. Whenever custody issues arise, or foster care cases are heard, the mantra is repeated. What is in the best interests of the child?

Though this question needs to be answered on a case-by-case basis, there are certain principles that have emerged as a result of studies of the child welfare system, and the emotional and psychological needs of children, etc. These principles have become universal beliefs that are consistently held by child welfare officials, and child development and mental health professionals.

The American Academy of Pediatrics has this to say:

“All placement, custody, and long-term planning decisions should be individualized for the child’s best interest…”

From the Children’s Bureau “Determining the Bests Interests of the Child: Summary of State Laws”:

“Courts make a variety of decisions that affect children, including placement and custody determinations, safety and permanency planning, and proceedings for termination of parental rights. Whenever a court makes such a determination, it must weigh whether its decision will be in the “best interests” of the child.”

Generally speaking, when referrals for child abuse, neglect, or abandonment occur, the first objective is to see if it is safe for a child to remain at home.

In those cases in which the child needs to be taken from the parents and placed into the foster care system, it is considered to be in the best interests of that child to reunify with his or her parents given the ability of that adult to rectify the issues that led to the removal of the child in the first place and to do so in a timely fashion.

Many child welfare officials believe that a child, when first detained, should be placed with relatives if possible, and if appropriate.

Consistency is stressed as important for children. There is a general belief that it is in the best interests of the child to stay in a stable environment, and not be moved from foster home to foster home.

After a specified period of time, if the parent is unable to satisfy the court’s demands, the preference for reunification turns to a preference for permanency for the child within a reasonable period of time.

Because of the growing awareness of the importance of attachment issues, it is generally held that if a child has lived in a particular foster home or pre-adoptive home for a significant period of time, and has formed strong psychological attachments with the caregivers in the home, it would be best for that home to be considered as the first permanent placement option for the child.

So we see that according to mental health experts, as well as child welfare experts, the best interests of children should drive custody decisions, and we see a general consensus as to what those best interests are for all children.

Then, we have ICWA. ICWA proponents put a very different spin on the term “best interests”.

Listen to this from Family Preservation: A Case Study of Indian Tribal Practice:

“Best interest of the child philosophy is antithetical to American Indian family preservation. Mainstream psychological theories of child development completely ignore Indian cultural factors such as kinship networks and other tribal customs in determining attachment and resiliency as phenomena in child development. …From a tribal perspective, ICWA standards that require inclusion of extended family, tribal custom, and community standards are appropriate and supercede deficit models.”

From the State of Nevada’s Indian Child Welfare Resource Guide:

“The ICWA is said to have “revolutionized” the “best interest” test in the context of Indian children. Most states used the “best interests of the child” standard in child custody proceedings by defining “interest” as being stable placement with an adult who would become the psychological parent. However, the federal standard states that the best interests of Indian children are served by protecting ‘the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining the children in its society.’”


Placement for the Child
These ICWA proponents are essentially saying that Indian children, as defined by ICWA, aren’t like other children. What is in the best interests of most children is not in the best interests of Indian children. Instead, ICWA’s provisions are in the best interests of Indian children.

When it is determined that the child in question is an Indian child according to the Act, there are certain placement preferences that need to be followed, absent good cause.

“a member of the Indian child’s extended family; a foster home licensed, approved, or specified by the Indian child’s tribe; an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs.”

“The standards to be applied in meeting the preference requirements of this section shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties.”

See again, the language of ICWA suggests that Congress understood that the parent or extended family has maintained social and cultural ties. There is no place for children like mine under ICWA.

Note that the first placement preference is with the child’s extended family. That’s really not that different from many state laws. Social workers often look for family to place the children with first. The second and third placement preferences are where things get a little interesting. A foster home licensed, approved, or specified by the child’s tribe, and if they can’t find one, an Indian foster home approved by the state essentially.

So in the many cases where there isn’t a suitable relative for placement, a Native foster home needs to be found. MEPA specifically states that it doesn’t have any bearing on ICWA. In other words, when it comes to Indian children, the state can indeed discriminate based on race. And it does. Interestingly, you cannot discriminate against an Indian foster family who wants to take in a white child, or a black child, or an Asian or Hispanic child. But you can discriminate against a non-Indian foster family who wants to take in an Indian child. Far worse, you can discriminate against an Indian child who simply wants a good family regardless of race.

We live in a nation that is always bemoaning the lack of good foster homes. We have thousands and thousands of children living in group homes across the country. We always hear stories of kids who wait in shelters or offices or police stations while social workers make numerous phone calls looking for a decent home. It is in this climate that we have to take a closer look at ICWA’s placement preferences.

With the shortage of good foster homes being what it is, why would we want to limit a child’s options more than they already are, simply because of his or her race or one part of his or her race most often, or political status, as ICWA proponents like to call it? And yet, that’s exactly what happens. Listening to the ICWA apologists, this doesn’t present a problem. In fact, it’s good for kids.

From the California Indian Services ICWA Benchguide:

“…a further advantage in effectuating the ICWA is that it affords the court additional placement resources…”

It’s almost laughable if it weren’t so unjust. Additional placement resources. What does that even mean? It sounds almost like there are just countless Indian foster homes out there waiting to take in these children…homes that are only willing to take in Indian kids. Of course if you listen to ICWA proponents, you would certainly get that impression.

As you may know, Oklahoma is where the Cherokee Nation is. The Cherokee Nation, by its own admission, as of January this year had more than 100 workers involved in 1100 custody proceedings involving 1500 children. Listen to this from a Cherokee attorney:

“We have Cherokee adoptive homes that are ready to take children who are ready for placement.”

This seems to give the impression that there is an abundance of homes just waiting to take in all these children that are in need of foster and adoptive homes right now. These kids that are full-blooded Cherokee, all the way down to 1/512 Cherokee, as was the case of a little girl the Cherokee Nation fought for last year.

This claim is corroborated by a 2002 study by the Annie E. Casey Foundation with the help of the North American Council on Adoptable Children, also known as NACAC. Entitled Family to Family: Tools for Improving Foster Care, the study highlights Innovative Programs which shorten children’s stays in foster care. One of the programs cited is the Cherokee Nation Adoption Project, headed up by Linda Woodward. The program is designed to “find permanent Cherokee homes for Cherokee children who cannot remain with their birth parents.” According to the study, this program has been a huge success, placing over 85 children in permanent adoptive homes in the nine years since its inception. They go on to make this claim: “There are no waiting Cherokee children in Oklahoma at this time. In fact, Cherokee Nation has a waiting list of 120 certified families.” Really? So in 2002, there are an abundance of Cherokee families waiting to take Cherokee kids. That abundance continues today. Yet, listen to this quote from the Muskogee Phoenix in August 2010:

“Linda Woodward needs a few good Cherokee moms and dads. ..

In the last year, 1,600 Cherokee children across the United States have been in protective custody in state courts. About 80 in the last year have been directly under the jurisdiction of tribal courts.

Of that number, around 675 are in Oklahoma.

‘We are responsible for finding families for these children,’ Woodward said. ‘We urgently need families. If we had 40 placements — 40 beds — we could fill them with children right now. They’re special people who can do this. We need them desperately.’”

Interesting. The same Linda Woodward who claimed to have 120 waiting families a few years ago says families are urgently, or desperately needed now.

More from Oklahoma – this from the Oklahoma City Clinic publication Horizons, whose CEO and President is Cherokee, in Fall 2011:

“The shortage of Native American foster homes means that Native American children who are removed from their homes, are often placed with non-Native American families.”

Also from Oklahoma:

“We have more than 80 Native American foster children, but only seven Native American foster homes.”

We find similar recent stories in other states:

North Carolina:

“In Hoke County, there are no Indian families to take in the 13 Indian children in foster care there.”

From Utah:

“At any given time, there are 170 Native American children in foster care in Utah. There are only 20 Native American foster families.”

From Oregon:

“There are approximately 400 Native American children in Multnomah County’s child welfare system. Yet, for many years there has been a shortage of Native American families willing to foster non-related children.”

From Michigan:

“Currently there is an extreme shortage of licensed Native American Foster Homes in Michigan.”

There are similar stories from many other states, including Iowa, Maine, Idaho, and North Dakota. So, again, if there are no suitable relatives available for placement, where states can then place a non-Indian child in the best available home to him or her, ICWA immediately limits the placement options of children who are subject to it.

It is extremely likely that state workers aren’t going to find an available Indian foster home. What happens next? ICWA mandates that the next placement option for the child is in “an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs.” That’s a fancy way of saying an Indian group home (i.e. residential facility/modern day orphanage).

For the vast majority of non-Indian children, the experts agree that permanency within a family, not an institution, is generally considered to be in children’s best interests.

Group homes are not good environments for children, but according to ICWA, they are better for Indian children, even children who are 1/512 Cherokee, than a loving, stable, healthy family that isn’t Indian.

The placement preferences for adoptive homes under ICWA are similar to those for foster placements. Absent good cause to the contrary, you must place the child with relatives, or in a Native American home. We already know there is a shortage of Indian homes to take in these kids. It’s little wonder Native American kids are adopted at a very low rate compared to all other ethnic groups besides African American kids. We hear it all the time. Indian kids stay in the system longer than non-Indian kids. You know why? ICWA.

We had nearly 28,000 children age out of the foster system in fiscal year 2010. The prospects for children who age out of the foster care system are grim. Do we really need to limit adoptive placement options for these kids? Is it really fair to limit children’s placement options based on their race? Call it race or call it political status based on race, it is discriminatory and unjust to limit any child’s placement options in a system where kids are aging out by the tens of thousands.


Good Cause
These placement preferences must be followed absent good cause to the contrary. That seems to imply that judges and officials would be given leeway to deviate from the placement preferences if it was in the best interests of the children to do so. However, over the years, these good cause exceptions have become severely limited by various court rulings. Whereas the extraordinary attachment a child has to his or her foster parents and family with whom he or she has lived for a substantial period of time might be enough to favor non-relatives for adoption over a relative of a non-Indian child, that is not considered good cause by itself under ICWA.

Listen to this from the FIRST ANNUAL WASHINGTON STATE INDIAN CHILD WELFARE SUMMIT:

“ICWA’s good cause standard requires something other than the traditional state law conception of a child’s best interests, under which considerable weight is typically given to the ordinary emotional bonding between a child and their current caregiver. ICWA, by contrast, establishes that the best interests of the Indian child are complex and necessarily include consideration of the Indian child’s interest in being raised in an Indian community.”

From the Montana Supreme Court:

“The emotional attachment between a non‑Indian custodian and an Indian child should not necessarily outweigh the interests of the Tribe and the child in having that child raised in the Indian community . . . . Moreover, a conclusion that an Indian child should be placed with a non‑Indian foster parent because of a strong emotional bond is essentially a determination that it is in the child’s best interests to be so placed. While the best interests of the child is an appropriate and significant factor in custody cases under state law, it is an improper test to use in ICWA cases …”

For us to believe the application of ICWA is truly best for Indian children, we have to believe one of two things:

1) “Indian” children, as defined by ICWA, somehow have different emotional and psychological needs that are best or only met if the ICWA placement preferences are followed. It’s as if they have this genetic marker in their brains that somehow make their needs different from other children’s, and therefore their best interests can be completely redefined. And, 2) we have to believe that this genetic marker doesn’t depend on DNA, but it does depend on a particular tribe’s membership requirements. In some tribes, that genetic marker is passed on to every generation no matter how distant the child is from their Indian ancestor. Our friend’s son, who is 1/1024 Cherokee, for example, has that genetic marker and would be best served by applying ICWA placement preferences. A child who is 100% Lumbee doesn’t have that genetic marker because her tribe isn’t federally recognized. A child who is 1/16 Klamath doesn’t have the genetic marker, but might have it magically implanted in him or her pending an online vote of current Klamath members. Does anyone really believe that? Sadly, yes.

There was much testimony to Congress leading up to ICWA’s passage about the detriment to Indian kids of being place in non-Indian homes off the reservation. One expert who testified to that effect was Dr. Joseph Westermeyer, of the Psychiatry Department at the University of Minnesota. Dr. Westermeyer wrote a paper about a study he conducted on 17 Indians who had been placed in non-Indian foster and adoptive homes. He had worked with them over a period from 1969 to 1974. Clearly, these 17 people had not done well. It would be easy to conclude after reading his study that Indians do have this genetic marker that renders them incapable of doing well if placed in non-Indian homes. A further look at the study reveals a different story.

First, the 17 patients Dr. Westermeyer studied were psychiatric patients to begin with. He didn’t take a random sample of 100 Indian adoptees who were adopted into non-Indian homes. He started with people who already had issues. You and I can go find and interview 17 psychiatric patients who all drive Toyotas. We cannot conclude, however, that driving a Toyota causes psychiatric problems.

His study found that the patients had a variety of diagnoses, including alcohol-related disorders, attempted suicide, neuroses, criminal activities, and behavior disorder.

Is this unique to Indian psychiatric patients? Moreover, is this unique to ex-foster children?

Listen to this, from the Child Welfare League of America:

“The frequency and severity of emotional problems among children in foster care seem to be strongly related to their history of deprivation, neglect and abuse, and the lack of security and permanence in their lives.

More than 80 percent of children in foster care have developmental, emotional, or behavioral problems. 
One study found that 44 percent of young adults who had been in foster care reported being involved in delinquent activities that led to court charges.

Of adults surveyed who had been placed in foster care as children, more than half had experienced clinical levels of at least one mental health problem in the last 12 months.”

It sounds like the issues these Indians had after foster and adoptive placements are typical of many children who enter the foster system.

Another problem with his conclusions is that only 3 of his 17 patients were in just one foster home. 11 of the 17 were placed in three or more homes while in foster care. We know that bouncing around from home to home is a detriment to all children, not just Indian children.


Another problem with his conclusions is that 10 of his 17 subjects were 5 years or older, and 6 were 10 years and older, when originally placed. Anyone in child welfare can tell you that older children generally exhibit more behavioral problems than children who are first placed when younger.

Dr. Westermeyer’s paper makes a couple of amazing observations that Congress either didn’t pay attention to, or didn’t hear:

“The patients in this sample presented mainly with behavioral disturbances (alcoholism, suicide attempt, violent and antisocial behavior) and less often with neurotic or psychotic problems. In this regard they are quite like other Indian people who have mental health problems. Indian patients in this area come into care for similar problems (especially alcoholism).”

Catch that? This psychiatrist who testified about the harm being done to Indian children who are placed in non-Indian foster and adoptive families, just said that these subjects had similar problems to those Indians who had NOT BEEN ADOPTED OR PLACED IN FOSTER CARE.

Further, he states:

“These Indian patients also resemble other foster and adoptive children who are not Indian. Several investigators have noted that these children come into psychiatric care more often than children in their original homes or in the homes of relatives. In addition, their problems were REMARKABLY SIMILAR to those of the Indian patients in this study: violence, sexual problems, theft, school problems, runaway and suicide attempts.”

Their problems were remarkably similar to non-Indian kids in foster and adoptive homes. Do we really need a separate law?

Keep in mind Dr. Westermeyer was talking about Indian children that the Act was intended to apply to – the children of Indians on-or-near reservations who were involved in tribal customs and culture. As ICWA is applied today, do we believe that the emotional needs of Indian children, including all those with minimal blood quantum and little or no contact with tribal life, are any different emotionally than other kids in the system?

So we can either believe Indian children’s needs are different or we have to believe something else. If we don’t believe that these children have some sort of genetic marker that makes their emotional and psychological needs different from other kids, then we have to believe something else if we want to continue to enforce ICWA as it is being enforced in the courts today. I think, in spite of all the good intentions, and in spite of the spin ICWA proponents put on it to try to make it look like it is in the children’s best interests, that this is really what is at the heart of it:

The child’s psychological and emotional needs simply don’t matter in light of the politics of tribal sovereignty and tribal rights. In other words, a tribe’s rights are more important than a child’s rights. It’s interesting to me that the tribes very often don’t step into a child’s life until a custody question arises. If our children had stayed with their birth mother, in Southern California, completely separated from tribal customs and tribal life and tribal influence, they would have been raised as “non-Indian” kids, assimilated into the majority culture of the United States. In that sense, the tribe allowed their mother to raise them as she wished. Why does the tribe then assert its so-called “rights” to these children when a custody issue arises? Why does a tribe interfere with a mother’s rights to place her child for adoption? If a tribe believes it has certain rights to “its” children, why don’t the tribes involve themselves in the kids’ lives before they are placed in foster care or for adoption? In America, we are always talking about freedom and individual rights. Why should an “Indian” child not have the same rights that other children in the foster system have? Yes, a tribe may claim them as citizens, but they are American citizens, too, and they have rights as American citizens. Why are their rights as American citizens trumped by a tribe’s rights under ICWA?

From THE INDIAN CHILD WELFARE ACT: A STUDY IN THE CODIFICATION OF THE ETHNIC BEST INTERESTS OF THE CHILD

“ICWA applies a “best interests of the tribe” standard, in addition to the best interests of the child and the parent.”

From “What is an Indian Family?” by Pauline Turner Strong:

“The ICWA is a particularly significant reaffirmation, one that is oriented as much toward the right of a tribe to determine its own membership and be governed by its own laws as toward the best interest of the Indian child.”

When I think of ICWA, I typically think of three types of children that are being impacted by it:

I think of Indian kids that are very much a part of tribal culture to begin with. I think for those kids, ICWA can be harmful in that it limits their placement options. Very often, relatives’ homes are approved under ICWA standards whereas they wouldn’t have been approved under state law.

I think of kids like mine, kids who have no previous connection to a tribe or tribal customs, kids who would be ignored by the tribe their entire lives if it weren’t for the fact that their parents were losing custody of them, either voluntarily or not. ICWA harms them in that it limits their placement options based solely on their race, and very often, disrupts a stable and secure placement because the Indian heritage is discovered very late in a case. These are the cases we hear about most often. These are also the cases that cause much of the so-called over-representation of Indian kids in the foster care system that we hear about all the time. You’ve heard it before…Indians make up 1% of the population, but 2% of the kids in foster care. Think about this for a moment. My two sons are like many of the Indian kids in the system. Before they entered the system, my older son would have been labeled Caucasian. Before entering the system, my younger son would have been labeled bi-racial, or Hispanic and Caucasian. It was only after they entered the system that they were counted as Indians. How much of that over-representation is actually due to the fact that pre-system these kids were not known to be Indian?

Then I think of non-Indian kids whose permanency is delayed when their birth parent make some claim of Indian ancestry, which the social worker then must investigate fully before the child’s case can move forward. I’ve seen children’s adoptions delayed for many months while social workers chase down tribes to which the child has no connection. I heard of one birth mother who claimed she was descended from a tribe and she named 22 possible tribes. Each one had to be contacted. Social workers will tell you that that know these false claims are made, but there is nothing that can be done about it.

Recently, I’ve learned of a 4th – Amaris Exley. Here is a child whose adoption was delayed for six months and not only is she not Indian, but no one was making a claim that she is.

One of the measures of a good law is if it addresses the problem it was intended to address. In all my years of reading hundreds of ICWA cases, I have seen only a couple that address the abuses that went on before 1978 – only rarely have I seen a case in which ICWA was applied to a child living within a tribal culture to begin with. Rather, what I have seen time and time again, are ICWA’s loopholes being exploited to apply placement preferences, thereby limiting placement options, or allowing placement in a home that wouldn’t be considered the best option under state law, or delaying permanency for children who have had little to no contact with their tribes or tribal customs in their entire lives, or disrupting stable placements and forcing children to move out of homes in which they have formed deep psychological attachments. Whereas ICWA was intended to prevent the permanent separation of a child from his or her tribe and its customs and culture and way of life, it has simply become a tool with which to decide custody disputes involving any child whom a tribe chooses to claim.

I have counted at least 10 ways the application of ICWA harms children.

  1. Its application approves relatives’ homes that otherwise wouldn’t be approved.
  2. It severely limits placement options.
  3. It causes instability in child placements.
  4. It favors group homes over family settings if the families are not Indian or related.
  5. It disrupts placements in which children have formed deep attachments.
  6. It ignores children’s other races, cultures, ethnicities, and yes, political statuses.
  7. It strips children’s rights as American citizens.
  8. It denies parents’ rights to choose adoptive families for their children.
  9. It delays permanency for children.
  10. It denies permanency for children.

How long will we allow children of Native and non-Native heritage today pay the price for the injustices wrought by society 50 years ago? Because that’s exactly what is happening…as much as ICWA proponents like to pretend and claim ICWA helps children, this law is not child-friendly. It is simply tribe-friendly.

There have been so many changes in the way foster care and adoptions are handled in the USA…all aimed at trying to attain the best interests of children. New laws are passed to help children gain permanency more quickly. And yet, for Indian children, the welfare system is stuck in the 1970s. It is a different world from the one Congress heard about in the ICWA hearings of April 1974. It’s time to help Indian children catch up with the rest of our nation’s children. We owe them that. Will Congress finally have the courage and integrity to stop allowing children to be used as political pawns? Will Advocacy Organizations stop hiding behind the veil of political correctness and start to speak up for these kids and call this law out for what it is?

ICWA is racist. ICWA is unjust. ICWA hurts children.

Thank you.