Kevin Washburn BIA
Bureau of Indian Affairs
Last month, Assistant Secretary for the Bureau of Indian Affairs Kevin Washburn announced the release of new guidelines in the Federal Register to ensure that state and federal courts comply with the statutes set forth in the Indian Child Welfare Act.

Indian Country Braces for Battle With Adoption Industry Over ICWA Guidelines

Suzette Brewer

Last month, Assistant Secretary for the Bureau of Indian Affairs Kevin Washburn announced the release of new guidelines in the Federal Register to ensure that state and federal courts comply with the statutes set forth in the Indian Child Welfare Act. Prior to publishing the guidelines, the BIA held five public listening sessions across the country that were attended by hundreds of tribal members, judicial organizations and child welfare professionals. The BIA also received hundreds of written comments from interested parties across the country, nearly all of whom requested strengthening and updating the language in the guidelines.

Two weeks later, on March 12, the American Academy of Adoption Attorneys (AAAA) fired back with its own press release expressing its outrage that the BIA had published the guidelines without input from its membership. In a statement from AAAA, president Laurie Goldheim, accused the Bureau of Indian Affairs of “a purposeful effort to bypass” its membership, even though the department had publicly worked on gathering input for over a year.

“The federal government’s unwillingness to hear from those groups who have been in the field for many years working directly with those families and children who will be negatively impacted by these guidelines is alarming,” said Goldheim. “As a nonprofit organization comprised of child welfare experts, we are committed to the ethical practice of adoption law. It is our mission to support and advocate for the rights of families and to consider the interest of all parties, especially children. Sadly, there are entire sections of the newly published BIA guidelines that completely disregard the best interest of children.

“We are shocked by the process by which these guidelines were promulgated and published,” she continued, “and the blatant failure to provide legal protections for children, especially children who are in the foster care system.”

Many Indian child welfare advocates across the country, however, say that the organization’s emotionally-charged response was ill-considered, considering that the BIA went out of its way to seek input in meetings that were promoted and open to the public.

“President Goldheim's claim that these guidelines are a ‘blatant failure to provide legal protection for children’ is without merit, and the fact that she says so indicates that she may not have actually read the updated guidelines,” the Lakota People’s Law Project (LPLP) Chief Counsel Daniel Sheehan told ICTMN. “The AAAA claims to be ‘shocked’ that the guidelines fail to provide protections for children, even though they make it clear in ten different places that imminent harm to a child is grounds for removal and not protected under ICWA. The AAAA is not on the side of Indian children or Native American tribes. They represent the interests of well-heeled clients that seek to adopt these children, oftentimes under scurrilous circumstances.”

Stephen Pevar, senior counsel for the American Civil Liberties Union and the lead attorney in the historic class action suit, Oglala v. Van Hunnik in South Dakota, said most practitioners in the industry were aware that revisions to the guidelines were underway well before they were published in the Federal Register.

“It’s surprising to hear that the AAAA was unaware that the BIA was in the process of issuing new guidelines. The BIA had been working on them for a long time and had solicited comments. It was common knowledge to anyone interested in the field,” said Pevar. “Nonetheless, the AAAA needs to bear in mind that when it comes to Native American children, remaining in a Native community with their parents, other relatives and tribal members is in their best interests. I don’t see that recognition in their criticism of the new guidelines.”

Members of the Native adult adoptee community were also upset with what they consider the inflammatory tone of the AAAA press release, since many of them have worked pro bono to educate the public about the negative impact of being placed in non-Indian homes as children. Thousands of these “lost children” have grown into adults working to reform an industry that they claim is more interested in protecting their revenue streams than what is in the “best interests” of Indian children.

“This misguided press release is about their fear of losing money versus our resolve to save our babies and therefore our culture,” said Karl Minzenmayer, a pre-ICWA adult adoptee advocate who was adopted out of the Fond du Lac Tribe of Minnesota in the 1960s. “These new guidelines are a direct result of what happened to Dusten Brown and hundreds of other parents and children across the country. So now the AAAA is looking 15, 20 years ahead and they see a dry dock—but we’re confronted with struggle for survival. If we do nothing, our people will be nothing. The adoption attorneys are not going to save our kids—they’re too busy selling them.”

Minzenmayer and other fellow adult adoptees have begun coalescing and organizing politically across the country to prevent a return to the days before the passage of the Indian Child Welfare Act, when Indian parents lost their children at alarming rates because of the accepted presumption among social workers that they were unfit parents.

“People like Karl and myself are the reason ICWA exists. This is not about race, it’s about sovereignty and we must continue to advocate for our children who are protected by the sovereignty of each federally recognized tribe. The AAAA doesn’t get to cherrypick which tribes fall under ICWA,” said Leland Morrill, a member of the Navajo Nation who was adopted out of Chinle, Arizona in 1971. “We’re easy targets. When they take our children, they label us ‘special needs’ so they can get more money for adoptive and foster care. That’s what they’re after. But I’ve been there. I understand what it’s like. I understand the emotional trauma of what these kids go through. So as adults who have been in the system, we feel it’s our responsibility to make sure these families have the resources and the help they need to keep their families intact because placing Indian children outside of their families and communities is not the answer.”

Less than a week after the AAAA press release came out, Washburn underscored the department’s resolve by announcing that the BIA had not only published the new ICWA guidelines, but that the department would also be seeking tribal consultations and public comment for the proposed regulations. The new regulations, the BIA said, was intended to “provide a more consistent interpretation of and promote compliance with the Act by incorporating standard procedures and requirements for state courts and child welfare agencies in Indian child custody proceedings.”

“The Bureau of Indian Affairs’ proposed rule clarifies and strengthens implementation of the Act’s requirements in Indian child custody proceedings to ensure that Indian families and tribal communities do not face the unwarranted removal of their youngest and most vulnerable members,” Washburn said in a press release. “I want to thank all those who attended listening sessions and provided comments and recommendations for our updated guidelines. Their contributions helped inform this proposed rule, which seeks to protect Indian children and families. We look forward to receiving more comments and feedback throughout the rulemaking process.”

For many legal observers in the Indian child welfare community, however, there was one notable assessment that came out of the AAAA’s newfound interest in the ICWA guidelines.

“Despite the cynicism on display, LPLP is heartened to learn that even the AAAA acknowledges the widespread problems that continue unabated in South Dakota,” said Sheehan. “We recognize that in cases like those, stronger guidelines need to be established to address the systemic issues that are negatively impacting Native Americans in that state. LPLP believes this shows an undeniable consensus emerging that South Dakota is engaged in widespread injustice by chronically and willfully violating ICWA to enrich their state coffers on the backs of the most marginalized population in the nation.”

In the meantime, the new rule is open for public discussion, for which the BIA has scheduled six public meetings and six tribal consultations beginning in April.

“The Department is in the formal rulemaking process,” said Nedra Darling, spokeswoman for the office of Assistant Secretary of Indian Affairs. “We welcome their comments on the proposed rule.”

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Josh Kroll
Josh Kroll
Submitted by Josh Kroll on Interesting that the Federal Register states this, " The Department received comments from those at the listening sessions and also received written comments, including comments from individuals and additional organizations, such as the Christian Alliance for Indian Child Welfare and the American Academy of Adoption Attorneys." So did AAAA provide comments or not? I think that would be a good question for them, as the Federal Register says they had. Now I get they may not be happy with the direction that the BIA took, but to say they had no say in the process seems off.