TULSA, Okla. – Attorneys, tribal officials, foster parents, social workers and a host of others packed into two ballrooms at a Tulsa hotel Thursday afternoon to weigh in on potential changes to the Indian Child Welfare Act.
First enacted in 1978, the ICWA was passed in response to the disproportionate number of American Indian children taken from their homes and tribes and placed in non-Indian communities. It gives tribes exclusive jurisdiction over custody proceedings involving children living on a reservation or, in states like Oklahoma that have checkerboard authority rather than reservations, presumptive authority over child custody proceedings and foster care placement.
The proposed tweaks, first issued publicly earlier this year, were drawn up in partial response to the 2013 Baby Girl v. Adoptive Couple U.S. Supreme Court case, also known as the “Baby Veronica case.”
In this case, the Supreme Court allowed a non-American Indian couple to take custody of a Cherokee child despite the biological father’s objections. If adopted, the changes would tighten enforcement of ICWA.
Among the proposed changes:
require that states and adoption agencies ask whether each child is an American Indian child
require states and adoption agencies to treat each child as an American Indian child until determined otherwise
take immediate steps to determine tribal citizenship in emergency removal cases
maintain detailed documentation of the active efforts to rehabilitate and reunite the family
increase notification requirements for courts, including sending notice to both tribe and parents via registered mail with return receipt
The proposed changes would also explicitly strike down the “existing family doctrine,” a loophole first introduced by a Kansas court in the 1980s that was used in the Baby Girl v. Adoptive Couple proceedings. A judicially created exception to ICWA, the existing family doctrine posits that whatever family an American Indian child is in automatically makes it an American Indian family and therefore should not be broken up.
“It is important for the Bureau of Indian Affairs to hear that when they’re talking about the forced removal of our children, it isn’t just something that happened in the ‘40s, ‘50s and ‘60s,” Chrissi Ross Nimmo, Cherokee Nation Assistant Attorney General, said. “It’s something that still happens every day in Indian Country.”
The tribe’s lead counsel during the Baby Veronica proceedings, Nimmo read into the record the details of what happened the night the girl’s biological father, Dusten Brown, relinquished custody and handed then four-year-old Veronica over to Matt and Melanie Capiobianco, a non-American Indian couple from South Carolina who were hand-picked by the girl’s biological mother to raise the child.
Through his attorneys, Dusten Brown released a statement Thursday in support of the proposed changes – his first public comments on the matter in almost two years. He did not attend Thursday’s listening session, nor the press conference hosted by Cherokee Nation in honor of Veronica and other children missing from their tribes.
“Hopefully, these regulations will keep other Indian children, families and tribes from experiencing the same heartbreak we experienced over the last five and a half years,” Brown’s statement said.
“Veronica, again I say to you, my home will always be your home. I miss you more than words can express.”
Other players from the Baby Girl v. Adoptive Couple court saga also spoke their piece on the proposed changes before the standing room only crowd, including Paul Swain, who was local legal counsel not only for the Capobiancos, but also for another non-American Indian couple from South Carolina who attempted to adopt an Absentee Shawnee infant over objections from the tribe and family members.
“Everything in this proposal was either outright rejected by Congress or in discussions,” he said. “There are several things in here that violate U.S. Supreme Court rulings. The agency simply does not have the authority to make laws out of thin air.”
Several other attorneys at the session also took issue with the proposed changes, including the Tulsa County District Attorney’s Office, which balked at the potential increase in postage costs associated with sending written notifications via registered mail to parents and tribes each time an ICWA case came through its office.
One adoption attorney, a member of the American Academy of Adoption Attorneys, went so far as to call the proposed changes an “overreaction” to the Baby Veronica case.
“These regulations hurt women and children,” Wichita, Kansas, attorney Megan Monsour said. “These are an issue of states’ rights and frankly violate Native children’s civil rights.”
The opposition was not just limited to attorneys, with one attendee going so far as to say that ICWA should not apply to mixed-race children.
“We must never forget what caused the mess and heartbreak not only for Veronica, but for hundreds of children nationwide – the simple implementation of the Indian Child Welfare Act,” Dawn Farrell said. “It is simply wrong to apply the Indian Child Welfare Act to multiracial children, especially those who, like Veronica, have a blood quantum of less than 1 percent.”
Thursday’s session was the last of six open forums on the matter, although the Department of the Interior will accept written comments through May 19. A final version will be published in the Federal Register after all public comments have been reviewed and taken into consideration. The version that appears in the Federal Register will not go into effect for at least 30 days after publication.