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Native American Adoption Law Challenged As Racially Biased

In 2014, Paul Buckley and his wife Cheryl Becker fostered a baby boy named Mason. They had seen other members of their Phoenix Arizona church community foster children and were inspired.

“We both have a heart for helping children, Paul Buckley explains. “And it seemed like a way that we could provide something to the community and specifically to children.”

After raising Mason for a year and a half the Buckley’s moved to adopt. It was straightforward until, late in the legal proceedings, the Choctaw Nation intervened on behalf of the child’s great uncle. It turned out that Mason’s mother and therefore Mason, was part Indian.

“His mother had never mentioned this we had never been told that there was anything there, Buckley said. “Mason didn’t even look Indian in the least regards most everybody that was involved in the case was equally shocked.”

Although the court and the state of Arizona were on the cusp of allowing Mason to be adopted by the Buckleys, the legal proceedings were terminated and the process started all over again. This time The Indian Child Welfare Act would hold sway.

The law says Native American children must be placed and adopted by either a family member, a member of their tribe or failing that, a family from another tribe. Chrissi Nimmo is the Deputy Attorney General of the Cherokee Nation. Nimmo explains why Indian adoptees are handled under different law than other children it helps to know the history.

“Assimilation was the goal, Nimmo says, explaining why indigenous children were removed from their homes. “We have these savage uncivilized Indians and we need to make them Americans.

Since being driven across the Trail of Tears 175 years ago at the point of a gun, Tahlequah Oklahoma has become the center of the Cherokee Nation—its music, its language, its culture and its government. Cherokees constitute the largest tribe in the country, 360,000 strong. And it’s therefore no surprise the nation’s deputy attorney general is the lead attorney in the legal battle over the Indian Child Welfare Act. Nimmo says the law was passed after more than a century of Indian children being taken from their tribes by whites.

“So we’re going to take their children and we’re going to train them in military boarding school we’re going to teach the girls to sew we’re going to teach the boys to work with their hands and then they’re going to go live in white American society and they’re going to fit in with the rest of the country. And Indian tribes as we know them will be no longer.”

Once tribal pacification had ended, thousands of Native American children were put into government dormitories. At the U.S. Training and Industrial School founded in 1879, the motto was “Kill the Indian and save the man”. By the late 1950’s, an effort named the Indian Adoption Project began pairing Native American children with white families. At the time it was considered enlightened adoption, white families open-minded enough to take Indian children. The deputy attorney general Nimmo says there were even advertisements in newspapers.

“Basically you could buy an Indian child for ten dollars and there literally was this ad that Indian children were available for adoption and for a ten dollar sponsorship fee they would send you one.”

The Bureau of Indian Affairs would sometime pay to place Native American children with white families. The Church of Jesus Christ of Latter Day Saints had a robust Indian Placement Program—thousands were adopted by LDS families. Nimmo says tribes began looking around going, “Hey, where are all the children?”

One third of all Indian children in the United States had been removed from their parents and between 80 and 90 percent of those had been placed in non-family, non-Indian homes.

In 1978, with bipartisan support and led by congressmen and senators from the Western states, The Indian Child Welfare Act passed Congress and was signed into law by President Jimmy Carter

But in October, U.S. District Judge Reed O’Connor struck down the Indian Child Welfare Act as unconstitutional. The Texas judge (who last week struck down The Affordable Care Act) ruled the Indian Child law is a racially-based preference that discriminates against non-Indian families. Timothy Sandefur is vice-president for litigation at the Goldwater Institute in Phoenix. Sandefur filed a brief to strike down the law.

“The problem was that it was so poorly worded that it now inflicts harm on Indian children that it was supposed to protect, Sandefur says. “We’re working on a case right now in Ohio where there’s a two year old Ohio boy born in Ohio has lived in Ohio his entire life almost his entire life with an Ohio foster family. But because his ancestry is Gila River the Gila River Indian tribe in Arizona obtained an order from its own tribal court forcing the child to be sent to live on the reservation near Phoenix. Simply because the blood in his veins happens to have the required amount of DNA. That’s unconstitutional and absurd.”

Remember Mason, the toddler that was about to be adopted by the Buckley family when his great uncle and the Choctaw Nation intervened? In the end, Mason did end up with the Buckleys. Why? Because the Indian Child Welfare Act allows the courts wiggle room if it’s judged to be in the child’s best interest.

And in this case, the lateness of the intervention plus Mason’s long relationship with the only family he’d ever really known, decided it for the Buckleys. But this outcome was an exception, most of the time the law means Native American children are adopted by other tribal members or other Indians. And for Indians like Juli Skinner, the law made all the difference.

“There’s a difference between being raised in your culture and having to learn about it later, Skinner says. She’s a Ponca Indian who was taken from her alcoholic parents as an infant and then bounced around the Oklahoma foster system for years. Finally her extended family, her father’s cousins, used the Indian Child Welfare Act to gain custody of her. And so she grew up Ponca. Now 41, Skinner is emotional as she contemplates how the life she’s lived likely never would have happened without that law.

“I would not be who I am. I feel like I owe everything to having been raised in my culture. Our belief, the spirituality of my tribe has been ingrained in everything I do.”

Is the Indian Child Welfare Act an unfair racial preference or a legal acknowledgement that Indians have citizenship rights as both Americans and members of their sovereign tribes? For now, the law remains in effect. Earlier this month, the 5th Circuit Court of Appeals stayed Judge O’Conner’s ruling while it takes up the case.

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