An adoption nightmare story involving a Utah couple, a birth mother, and the Ojibwa tribe has brought to the public eye some interesting, albeit disturbing, elements regarding adoption.
The gist of the story is that the birth mother got a Native American tribe to intercede on her behalf after the legal adoption of the child she gave up was finalized.
Prior to the removal of the child from the adoptive parents, the birth mother had been declared unfit as a parent, and lost the other children she had. It should be noted that she is less than ¼ Native American. How she was able to get the child she gave up removed from his legally adoptive family under any of these circumstances is a big question. Why the Ojibwa tribe stepped in is also a question, doubly so given the fact that the child will now likely need to be placed in foster care.
With all the press as of late about so many children in need of good homes, this tale of one child intentionally placed in foster care when he was already legally adopted to a good family is especially disturbing. The reason behind the removal has been explained simply as the adoptive parents not being Native American. Ironically, according to the U.S. Codes definition of ‘Indian’ (Native American), neither are the birth mother or child.
The definition of ‘Indian’ from section 1603 (c ) of the U.S. Code [published online courtesy of Cornel Law School], ” . . .is a descendant, in the first or second degree . . .” To clarify, first degree descendant means you are the child of one or more Indian parents – so you would be 50 percent to 100 percent (1/2 to 1) Indian. Second degree means that one or more of your grandparents are Indian. This makes you 25 percent to 100 percent (1/4 to 1) Indian. Less than ¼ is not covered.
While cited, in actuality, the Indian Child welfare Act, was designed to prohibit “the removal, often unwarranted, of their children from them by nontribal public and private agencies”. The birth mother made the decision to give up the child, and the family made a legal adoption. The birth mother is such a small percentage Native American, it is unclear how she qualifies for any type of ‘protection’ under this act. If such a low percentage is applicable for Indian rights and protection, then many Americans may be eligible for the usage of this act and other Native American laws and benefits. The ramifications of such a precedent being set are staggering.
What is even more ironic in the Indian Child Welfare Act is section 1916, Return of Custody. It is very clear about doing what is in the best interest of the child – and specifically speaks of cases in which the adoption has been vacated or set aside, or the adoptive parents voluntarily give up the child. There is nothing in it about forcibly removing a child from a legally adoptive home.
Following the logic, if the Indian Child Welfare Act was intended to stem the loss of the Native American Culture in American, and to prohibit predatory child removals from tribes, how does this case apply? If we give the mother the benefit of the doubt and assume ‘less than 1/4’ means she is 1/8th Native American, this means the child is presumably 1/16th. This also means the child is predominantly one or more races other than Native American. How does that help preserve the Native American culture? What does this mean for other adoptive families who may have adopted a child with a trace of Native American ancestry? This raises the question as to whether adoptions will now have to have completed genealogy charts before they may become finalized. If this happens, how many generations back will they have to go in order to prevent this from happening in the future?
The adoptive family cooperated with the removal as they felt they could not afford the legal battle. At the time of this article, there was no word of any type of legal defense fund being established to help the family recover their child.
This case is one more strike against the adoption process as well as one more thing that may drive prospective parents away from the adoption option. If a legal finalized adoption is not really final, the risk may not be worth it for many.
*It should be noted that use of the word ‘Indian’ in this article refers to Native Americans.
Utah couple forced to give adopted baby back to tribe. Susan Wood.
ABC 4 Utah. 12/15/2008
UNITED STATES CODE TITLE 25
– INDIANS CHAPTER 21
Indian Child Welfare – HTML version
From Nicwa.org. Page 2 and 5.
*PDF version: http://www.nicwa.org/policy/law/icwa/ICWA.pdf
U.S. Code Collection
Title 25 – Indians
Chapter 18 General, Section 1603 (c )