Native children like this girl are increasingly protected by the Indian Child Welfare Act in adoption and foster placement proceedings, in which extended family members – including non-Native ones – have preference. Major challenges to ICWA off-reservation are the Existing Indian Family Exception, abandoned in at least 15 states, which may claim children never lived in an “existing Indian family or home” because of supposedly weak or distant ties to tribal lands or customs, and the Adoption and Safe Families Act, which may place rapid permanent placement priorities ahead of family reunification goals.

ICWA: Individual and Tribal Survival at Stake

Carol Berry
3/10/10

Part 5 of 5

RAPID CITY, S.D. – children, grandchildren, and tribal nations – enrollment and inclusion can spell collective survival, because “every tribe is one generation away from cultural and political extinction,” according to Maylinn Smith, a law professor.

Plenty of native individuals, too, are evidence that being part of the tribal nation can spell survival – survival as an individual with a robust sense of self – while being on the outside can mean problems, as one woman’s story indicates.

Rapid city isn’t her hometown, but it is a city where she thinks she has sighted some people said to be relatives. She has looked for others to confirm her native self in churches, among friends and strangers, in various groups, in bars, and on the streets of several cities.

Like some other native people raised in non-Indian homes, she has felt both closeness to and distance from her adoptive parents and the person they told her she was. For whatever reason, Indian child laws were never involved, although she believes she is of full or nearly full native ancestry.

Across the state, a judge in the Sisseton-Wahpeton Oyate tribal court signs another of many custody orders concerning a teenager who, unlike the woman, has had many homes with his parents, extended family, and close others.

Unlike her in other ways as well, his identity is secure, rooted in close relationships, cultural activities, his community, even his Dakota language, which he speaks fluently. He knows and is known by elders, his contemporaries, and cultural and spiritual leaders.

Although not obvious at first glance, both their lives – and those of similar others – are related to tribal enrollment or, more broadly, to tribal member- ship and tribal sovereignty. The teenager was born, raised and lived on the reservation where he was a citizen and where tribal law applied. The woman in question, Native but not enrolled, was born off-reservation, and in circumstances which apparently allowed strangers to intervene.

Enrollment and related legal issues concerning foster care and adoption by Native and non-Native families affect children, of course, but they also impact caregivers like Arlie Kendall, now 50, who said she was the first foster parent under the Indian Child Welfare Act in Arapahoe County, Colorado, near Denver.

“ICWA is absolutely necessary and I’m very grateful for its existence,” she said, pointing out she had “no issue with them.” But she had issues aplenty with Arapahoe County Human Services, whose representatives, citing confidentiality rules, said no information is provided in cases involving children in foster or adoptive situations.

Kendall charges that the county “completely ignored – among other things – what ICWA was attempting to do” in terms of providing a stable, culturally competent temporary home for the 6-month-old placed with her. The boy was tribally enrolled, but was an urban “crack baby” when he was taken from his Native mother and Hispanic father, she said.

The baby was to stay with her until his paternal grandparents went through a social services program and were “ready for him,” she said. Twice weekly she took him to therapy and once weekly to visit his 4-year-old sister, who had been placed in another home – round trips totaling 150 miles a week. When the baby was a year old, she turned him over to the social services worker to go to his grandparents, “but within two weeks they turned him back, saying they couldn’t handle it.”

“Instead of giving him back to me, they put him in a non-Indian foster home” and gave her no reason, even though she told them she and the baby had bonded. She thinks the placement was in retaliation for a complaint she filed.

“As a foster parent, you’re issued a social worker and the child is issued a separate social worker. His social worker is who I had problems with – she was really disrespectful to me. She treated me like I was the crack mom. I spoke to her boss, but nothing was ever done.”

Kendall thought the baby was placed with a couple in a rural Colorado community, but later heard he had been adopted by a family in South Dakota. She was never able to find out his fate with any certainty and she doubts that social workers sent him a letter she wrote about his naming ceremony and a beaded arrow that accompanied it.

“I didn’t want to be intrusive – just wanted to be an ‘auntie’ – so he would know there was someone out there who cared about him,” she said of the child, now 8 years old.

Kendall said she is of Potawatomi heritage but is not enrolled. She has been a part of the local urban Indian community for many years. “At the end of the whole business, I never went back to fostering. It was an abusive experience. And yet they’re always saying they need Indian foster homes.”

Although Kendall says she was considered by social workers to be an Indian family, “There was no one to enforce the law at that time.”

The ICWA foster care line of preference (which has been sidestepped by state courts, albeit less frequently) is placement first with a child’s extended family, and after that a tribally-approved Indian foster home, a non-Indian licensed Indian foster home, or, finally, an institution for children that is tribally approved or Indian organization-operated, according to practitioners.

In spite of difficulties like these for individuals, ICWA is increasingly important, many believe, to save a generation of tribal citizens, empower tribal courts, and build Native nationhood. It’s political, not racial, given the requirement that Indian children be enrolled or eligible to be enrolled in a federally recognized tribe and with a birth parent who is a tribal member.

And it’s both an individual and collective benefit, its proponents believe.

Ultimately – though too late for those mentioned here and many others – ICWA has been a “critical instrument for protecting the interests of a child’s tribal heritage, preventing a tribe’s loss of children, and honoring tribal sovereign authority,” according to Carol L. Tebben, an associate professor emerita at the University of Wisconsin.

Series:

Part 1 – The Human Face of Enrollment Wars

Part 2 - Who is 'Indian' Varies by Definition

Part 3 - Tribes Target Grandchildren in Planning

Part 4 - Native Status May be Affected by Diversity Issues

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