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Center for Advanced Studies in Child Welfare

Center for Advanced Studies in Child Welfare

Proposal to reform the Indian Child Welfare Act

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'Baby Veronica'Photo from October 2011 of 'Baby Veronica,' provided by Melanie Capobianco, the woman who was in the process of adopting her. AP Photo/NewsOK

It is important that I provide some background to this post prior to delving into the issue. A toddler named Veronica is at the center of this story. This is what I've been able to determine from several news reports (including this article from CNN): Veronica's non-Native birth mother gave her up for adoption to a non-Native family in South Carolina, with whom she lived for her first two years of life. Veronica's birth father is officially enrolled in the Cherokee Nation, which means Veronica is also Cherokee. It sounds like the birth parents signed a legal document stating that they both agreed to give the girl up for adoption, though it appears that the birth father may not have been fully informed of what exactly the document meant. When Veronica was four months old and living with her new family, her birth father began seeking custody of her, eventually receiving it through provisions of the Indian Child Welfare Act. Since December 31, 2011, Veronica has been living with her birth father.

Indian Child Welfare Act (ICWA) Reform
As a result of the outcome of the "Baby Veronica" case, a coalition has emerged with the purpose of reforming ICWA to make it easier for non-Native families to adopt Native children. Among other changes, they propose to reduce the amount of time a Native birth parent has to revoke his or her consent to adoption from 12 months to 30 days. Additionally they are asking to allow Native birth parents to choose their own adoptive family for their children, regardless of the adoptive family's ethnic heritage.

According to Chrissi Ross Nimmo, assistant attorney general of the Cherokee Nation, "This defeats the entire purpose" of ICWA.

Law and Implementation
ICWA was signed into law in 1978 in response to past unethical and destructive child welfare practices that had caused the break-up of Native families and loss of cultural heritage due to a belief that assimilation was necessary. ICWA gives tribes jurisdiction over the well-being of their children. The issue in Baby Veronica's case is not that ICWA is problematic, but that the adoption agency and others involved with this case did not comply with ICWA. Had they been in compliance, this situation may not have arisen.

Best Interest of the Child
When conducting court proceedings based on the best interests of the children involved, one should consider solutions that are in fact in the best interests of the children. In Baby Veronica's case, it is crucial to consider developmental issues of attachment and stability because of how young she is.

We often hear cases in the news of foster or adoptive parents and birth parents or kinship providers fighting for custody rights of a child in court, without taking into consideration the possibility of establishing contact agreements between both parties. We also hear of instances in which contact agreements were established but not followed or enforced. In Baby Veronica's case, a contact agreement followed by both sides may have been a viable solution.

Additionally, many cultures in this world, including Native cultures, do not adhere to a strict two-parent rule. For example, it is entirely possible for children to have as parents those who gave birth to them as well as influential adults in the children's lives. In the U.S., children may be raised by their stepparents, grandparents, uncles, aunts, etc. in addition to their birth parents. The question arises, Why exclude non-kin adults, such as current/former foster parents and close family friends, from partaking in that role? (For a blog post discussing this topic, please check out this recent post in our Stability, Permanency, & Adoption blog.)

Some thoughts on this case

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The proper question to be argued before the U.S. Supreme Court is:
“Where is the proclamation ratified by 1/3d of the voting citizenry of the United States that amends the U.S. Constitution that will make the health, welfare and benefits of a U.S. Citizen distinguishable because of that citizen’s Indian ancestry/race? Paul R. Jones

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