Just last month the Bureau of Indian Affairs (BIA) issued new, more stringent guidelines regarding the enforcement of the Indian Child Welfare Act (ICWA) that have caused great concern for many in the adoption community, including members of the American Academy of Adoption Attorneys (AAAA).

The Indian Child Welfare Act (ICWA) was enacted in 1978 as a means to protect Native American children from the removal of their homes by non-Native families who don’t understand their culture.  It was established as a means to protect Native American families, keep them unified, and to keep the culture alive.

However, many adoption professionals are concerned that the BIA’s new guidelines will harm, rather than help, native children.

It is so concerning, in fact, that the president of the AAAA, Laurie Goldheim stated:

“Several months ago, the Department of Interior through the Bureau of Indian Affairs advised our Academy and other interested child welfare groups that there would be an opportunity to provide comments and feedback to any proposed revisions to the BIA’s federal ICWA guidelines. However, in what appears to be a purposeful effort to bypass input from our Academy, the public, and other child-focused organizations, the BIA recently published amended guidelines and made them effective immediately.

As distinguished professionals in the field of adoption and foster care, we and many other groups who work in the courts and the child welfare system are appalled by this surprise publication. 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. 

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, and the blatant failure to provide legal protections for children, especially children who are in the foster care system. For example, cases involving the removal of a child from his or her placement (even if the child will suffer serious harm), the court is directed not to consider attachment or bonding issues. The new guidelines also state that the “best interest of the child” is not a consideration, thus treating them as possessions as opposed to human beings with rights of their own.

As long-time protectors of the best interest of children, the Academy is stunned by the lack of due process in formulating these new guidelines. While the guidelines are only recommendations and do not have the authority of federal enacted law or federal regulations, if these guidelines are given weight by the courts and child welfare agencies, children will most definitely be hurt.

We are committed to ensuring that every child has the best chance for a positive and fair outcome in the judicial system. We urge the Department of Interior to reevaluate how these guidelines were drafted and issued, and allow the Academy and other organizations who work in the field with families and children to be involved in the process.”

Individuals, also, are speaking out against these changes.  One such individual is 20-year-old Christopher Moore, who never knew his birth father as he was being raised by his birth mother. When Christopher was just 6 years old, the family fell into hard times, and he and his brother were abandoned by their struggling mother. They were turned over to social workers who, after no relatives would step forward to take the kids, found a set of loving parents to care for them. For the first time, these boys felt protected and secure.

Unaware of the struggle their foster parents were already enduring regarding custody of the boys, Chris and his brother just knew that they were “home.” They had a mom and a dad who loved them, and the boys loved them back. Permanent placement with their parents was threatened when the biological paternal grandmother of Chris stepped forward with the news that Chris and his brother were 1/16th Native American. Growing up as a “white California boy,” this was shocking to Chris. But even more disturbing was the fact that this meant the tribe would decide their fate. In the name of “culture,” the boys’ case was turned over to the American Indian Unit at Los Angeles County DCFS. They were given new social workers who never got to know them, “never interviewed our therapist, lied to the judge, displayed little knowledge of the law, and tried to get our mother to testify that she wanted us to leave [our parents] and live with my grandmother.” Additionally, the tribe itself sent someone to observe the boys with their parents and then again with their paternal grandmother (who had no Native American blood). To two young boys it felt intrusive and it challenged their sense of security, which they were just getting used to. “It was all a game,” Chris says. “And if the people promoting ICWA won, my brother and I would stand to lose the most.”

In the end, it was his biological mother getting arrested that led to Chris’s desired resolution.  Because she had been arrested, she would be in court to testify. With the true love that mothers feel, she testified that it was her wish to have the boys remain where they were. She knew they were loved and well taken care of. “I am so thankful for her arrest and testimony, but I can’t imagine what would have happened to my brother and myself if she hadn’t been there that day . . . After my parents won in court, my grandmother appealed and the tribe appealed on her behalf too. They had no business in my life and had no right to try and decide what was best for me. They didn’t help when we were homeless or when my mother was struggling to take care of us.  They came into our lives when we didn’t need them and they fought hard to disrupt us when we were finally thriving for the first time in our lives.”

Chris and his brother were the unfortunate victims in a case of the ICWA laws going too far.  From Chris:

“Congress wanted ICWA to prevent the breakup of Indian families. I was never a part of an “Indian family,” at least as any of us saw it. Even if I had been, our family was broken up when my father abandoned my mother during the pregnancy and when she abandoned us in the apartment.

“Congress wanted children placed in homes that reflected the ‘unique values of Indian culture,’ yet the tribe wanted me placed with my white paternal grandmother, and eventually I would have gone to my white father, neither of whom practice Native culture.

“Congress wanted to protect the stability and security of tribes, but how does forcing a permanent home on me 1,500 miles from the tribe accomplish that? The tribe could still have made us members after our adoption, and could have had a relationship with us, but chose not to. Adoption in a non-Native home isn’t to blame for that. 

“Most of all, Congress wanted to protect the best interests of Indian children, and yet the social workers in our case didn’t even look at our best interests and failed to ever talk to our therapist about what he thought our best interests were. They made an independent decision that our best interests were served by applying ICWA.

“If the new BIA guidelines are followed and the proposed regulations go into effect, countless more children just like me will be hurt. Childhood is fleeting and children who have been traumatized do not need more trauma by ripping them out of homes in which they are attached and thriving – no matter what their heritage or partial heritage is.”

Chris, the American Academy of Adoption Attorneys, and many advocacy agencies are speaking out against the new guidelines and ask for your help in getting them changed.  Please follow the links below to make your voice heard.

Website: Stop the Misuse of ICWA

Facebook Page: Stop the Misuse of ICWA

Petition: Stop the Misuse of ICWA