Indian Child Welfare Act Hearings in Arizona

“John Echohawk had heard enough. On May 14, he had listened with growing irritation to lawyers representing the American Academy of Adoption Attorneys (AAAA) denigrate the recently published guidelines and proposed rule for the Indian Child Welfare Act in front of the very people who had authored them.

As the founder of the Native American Rights Fund, Echohawk had flown to Tulsa to provide his comments in the standing-room-only ballroom at the Marriott. Hundreds of Indian people, tribal leaders, ICWA workers and lawyers from across the country had converged on Tulsa for the sixth-and largest-public hearing conducted by the Bureau of Indian Affairs in anticipation of the agency updating and enforcing the provisions of the 37-year-old federal statute.

Throughout the day, one after the other, witnesses on both sides had pulled back and forth in a tug-of-war regarding perhaps the most seminal issue confronting American Indian tribes in the 21st century: the right to raise their own children in their home communities.

The debates at the public hearings reopened old grievances and unhealed wounds at the core of an ongoing conflict over Indian children, a debate that has been raging for more than 500 years. Beginning with the Spaniards, who landed in the West Indies in the late 15th century, Indian tribes have been at war over possession of their children with one power after another-including the British, the French, the Dutch and the United States-ever since.

For nearly a year, many of the people attending these public hearings had worked in near-unprecedented solidarity with tribal nations across the country and numerous Indian child welfare organizations to submit comments and suggested changes to the new guidelines before they were published by the Bureau of Indian Affairs in February.

In March, Assistant Secretary for the BIA Kevin Washburn took it a step further by announcing the agency’s intention to seek a federal rule that would make the welfare act binding, rather than “legally persuasive”-which allowed social service agencies, adoption attorneys and state court judges to bypass the law at their discretion since the passage of the ICWA in 1978.

The period for public comment concluded at midnight May 18, after which the BIA began the process of evaluating and analyzing testimony and written comments before publishing the final rule in the Federal Registry later this year. The rule will then become codified into the Code of Federal Regulations.

As the hearing in Tulsa got underway, adoption attorneys lined up at the microphone. Among their complaints: Indian parents and tribes “never” show up in court to intervene in ICWA foster cases; the BIA does not have authority to enact regulations; the BIA failed to “consult” the adoption industry; Indian children with low blood quantums should not be eligible for ICWA; that being forced to attend the hearings was subjecting the adoption attorneys to a “hostile environment,” that the hearings were only held “east of the Mississippi;” the postage costs required by the rule are too expensive, and so on.

All of these claims were refuted by tribal witnesses, in perhaps one of the most contested rulemaking procedures in the history of Indian affairs. Tribal attorneys and ICWA workers said their intervention on behalf of their children in state courts across the country is routinely met with irritation by family court judges and social services, if not outright contempt. Often, they said, judges and social workers make it as difficult as possible for tribes to locate and reclaim their children. The emergency temporary custody hearings, they said, are often perfunctory and dismissive of ICWA and its provisions and are the point of permanent departure for many Indian kids.

In many cases, the tribes argued, they are never given notification that one of their children is in the system.

By this point, Echohawk was seething. Stepping to the microphone, he ripped the adoption industry for not only their lack of knowledge about Native people, but their inability to grasp the fundamental reasons ICWA was enacted in the first place.

“Since the Native American Rights Fund was organized 45 years ago, we have been involved in thousands of cases across the country, which involve our sovereignty, our homelands and our culture. Some have been Indian child welfare,” he said. “I support the proposed rule because ICWA enables us as tribal governments to protect our children to stop their wholesale removal. But in my opinion, the biggest problem we face as Indian people is the ignorance on display by social services, lawyers, state judges-and yes, even Supreme Court justices.”

The growing conflict between the tribes and the adoption industry had been brewing for years and came to a head during Adoptive Couple v. Baby Girl in 2013. But it flared anew earlier this year after the Bureau of Indian Affairs published the guidelines in February. The AAAA immediately issued a press release on March 12 crying foul.

In advance of the final public hearing in Tulsa, the AAAA issued another press release challenging the BIA’s authority to engage in rulemaking, saying that the proposed changes “are contrary to the best interests of Indian children, Indian parents, and will only foster increased litigation and constitutional challenges.”

According to their website, the American Academy of Adoption Attorneys is a not-for-profit organization comprised of attorneys, judges and law professors throughout the United States and Canada whose mission is to “protect the interest of all parties to adoption,” including “legislative efforts to amend ICWA and establish federal protections for birth parents.”

For tribal nations, their legal teams and many Indian child welfare professionals, however, the industry complaints are only new insofar as the organized ground game employed to forfend any changes to a business structure by an aggressive, well-funded industry. According to market research giant, IBISWorld, for example, adoption in the United States is a big business, pulling in some 4 billion a year with a projected annual growth of nearly 10 percent, as approximately 150,000 children a year are placed for adoption.

Several tribal lawyers felt the AAAA’s claims were disingenuous, at best. In its March 12, 2015 press release, the AAAA charged the new guidelines were published “in what appears to be a purposeful effort to bypass input from our Academy,” and that it was “stunned by the lack of due process.” However, as far back as April 15, 2014 the Academy was participating in the process as evidenced in a seven-page letter that former AAAA president Donald Cofsky wrote to the Bureau of Indian Affairs with comments and proposed changes to the guidelines.

“[The new guidelines] were not a ‘surprise.’ It was public knowledge and everyone in the industry, Indian and non-Indian alike, knew the guidelines were being revised,” said one tribal lawyer who declined to be identified because the process is still underway. “But their strategy has always been to engage in equivocation and tergiversation in order to maintain the status quo, because any changes represent a loss of profit to their bottom line. So our message is very direct: The adoption industry doesn’t care about our Indian kids, all they care about is money. And that’s fairly transparent.”

Throughout the process, the Academy has insisted that court proceedings should weigh the best interests of the child, including attachment and bonding with prospective parents, which has been de-emphasized under the new proposed guidelines and rule. Bonding, the industry says, is not simply a legal mechanism used to override ICWA, but a guiding principle followed by its members.

The tribes, however, maintain that the standard operating procedure among the states is to unnecessarily hold Indian children as hostages in state custody for months on end-only to claim the child had bonded with their foster family to clear the way for termination of parental rights and formal adoption. Lengthy foster stays, they testified, merely allows “possession by estoppel,” a legal mechanism designed to cleave and hew Indian children from their families and tribes.”

Indian Child Welfare Act hearings reignite adoption debate [Navajo-Hopi Observer 7/14/15 by Suzette Brewer]

REFORM Puzzle Piece