Indian Child Welfare Act Preserves and Strengthens American Indian Families

Photo by Mary Annette Pember Danny is seen here just two days after going home with Mary Annette Pember and her family.

How the Indian Child Welfare Act Preserves and Strengthens American Indian Families

Indian Child Welfare Act not created to unfairly target mixed race Native children

Mary Annette Pember • June 22, 2017

To this day, I have no idea what made me call my tribal Indian Child Welfare Act (ICWA) office back in January 2005. “No, there are no children who need homes,” the worker told me. She noted, however, that Bo, a distant cousin of mine, had given birth to a boy a few months ago. She said a white couple I had met took him home from the hospital and were in the process of adopting him.

I thought it strange that a couple that had several adopted children would take another, especially an infant. I knew they were several years older than I, so I decided to investigate.

What I learned changed my family forever.

My husband John and I had first looked into adopting a child from my tribe in 1998. We had all but forgotten about the inquiry when my tribal ICWA worker contacted me close to four years later in 2002 with the news that a 2-year-old girl (also Bo’s child), was available for adoption. The girl was named Lena; she lived with foster parents in the state of Washington, where Bo’s family had relocated from Wisconsin.

Since I had business in Seattle a few weeks later, I asked my ICWA worker if I could visit Lena and her family before my tribe made a decision about allowing the child to be raised by non-Ojibwe. The worker agreed and asked that I let her know how the visit turned out. That’s when I met Lena as well as Miriam and Rodney, her non-Indian foster parents, for the first time. Lena had come home from the hospital with the couple, and joined their extended family of adopted children. Miriam and Rodney had expressed their wish to adopt Lena and were concerned and disappointed when they had heard the tribe might exert jurisdiction over her. Miriam, however, was gracious when I visited. I spent the better part of the afternoon at their house as Lena proudly displayed her expertise in riding her rocking horse and strutted around officiously showing me her dollies.

The goal [of ICWA] is to preserve and strengthen American Indian families and culture by re-establishing tribal authority over its children.

At last she lifted her arms to Miriam, asking to be picked up. Lena smiled serenely into Miriam’s eyes and patted her warmly on the shoulder. I noted that their skin coloring and hair were similar. The warmth that passed between them was unmistakable; they were mother and daughter. It was then I knew I could have no part in taking Lena away from this family. I’m not sure how politically correct it all was but I called the tribe with my decision. The tribe decided to go with my gut reaction. Miriam and Rodney adopted Lena; the tribe did not intervene.

Tribes decide every day not to exert jurisdiction over the offspring of their membership who are eligible to be adopted under the Indian Child Welfare Act. Many smaller tribes cannot afford the time and travel involved in each ICWA case, especially among those in which no tribal member is contesting the placement. Tribes often make the difficult decision to allow other social service agencies to place their children with non-Indians. The overriding factor is what is in the best interest of the child.

The Indian Child Welfare Act was enacted to end the near-wholesale removal of American Indian children who entered state social services. The goal is to preserve and strengthen American Indian families and culture by re-establishing tribal authority over its children.

The mainstream world, however, hears only about the occasional, contentious ICWA-related adoption. The press typically portrays the Indian Child Welfare Act as an obscure law that unfairly targets mixed-race Native children in order to fulfill a politically correct vision of righting wrongs against Native people. The story line inevitably involves a tribal court heartlessly ripping a mostly non-Native child from a loving, non-Native adoptive family. The real story of how ICWA plays out in families’ lives is usually far less contentious and much more poignant, as tribes struggle to make the most of their limited resources in order to help their children in the best way that they can.

Miriam and Rodney, for instance, welcomed my continued interest in Lena as a chance for her to better know our ways. After our 2002 meeting I would send her manoomin (wild rice) and sew jingle dresses for her and occasionally call to inquire about her growth and progress.

Given all that, Miriam was not surprised to get my call in January 2005, but she was shocked to learn that we were not already in the process of adopting Danny, Bo’s most recent baby. She had assumed that the tribe had contacted us regarding adoption. Miriam and Rodney had tried to parent him, spending hours visiting him in the Neonatal Intensive Care Unit (NICU) while he detoxed from his mother’s heroin addiction. Bringing him home, however, proved to be too much for the couple. Miriam said she felt terribly guilty but caring for the needy, fragile baby was simply too much for her and her husband, who were both nearly 60 by then. Although the hospital notes from Danny’s first days are recorded in typical terse medical language, they paint a vivid picture of a tiny baby’s suffering the agony of narcotics withdrawal.

“This is an infant born to a 20-year-old mother. No prenatal care. Mother has been using heroin and cocaine throughout pregnancy and for most of past seven years. Last used heroin at 7 a.m. on morning of delivery. Mother indicates she wants to give child up for adoption to join her older daughter, also adopted, wants to leave hospital but promises to return to meet with Child Protective Services (CPS) in the morning. This is doubtful due to her drug abuse. Infant admitted to nursery for observation for narcotic withdrawal.”

Danny spent the next two and half months in the NICU withdrawing from narcotics. Some random nursing notes read as follows:

“22:32 Baby wakes from sleep frantic and crying. Morphine and Tylenol administered. Crying constantly, holding body washboard stiff unless held and then will arch and briefly relax.”

“13:32 Has been very irritable, gets fussy with any stimulation. Morphine and Tylenol.”

“14:04 Unable to comfort self, curls into body of nurse when held, responds well to swaddling.”

“14:54 Foster parents (Miriam and Rodney) and sister here for visit. Held baby and bonded with him. Morphine administered. Sleeping peacefully.”

Since Lena’s birth, Bo had descended more deeply into heroin addiction; she had turned to prostitution to feed her habit and was rumored to have traveled to Los Angeles in that crazy run-and-gun lifestyle that defines addiction. According to Danny’s guardian ad litum, Bo had suddenly showed up at the local hospital to give birth after going missing from the community for several months. When the doctors opined she might need a caesarian delivery, she tried to run away and agreed to remain at the hospital only if she could go forward with a vaginal birth. After Danny was born, the doctor placed him on her chest. She touched her child’s head briefly before giving him to a nurse. According to the guardian ad litum, as the nurses busied themselves with Danny, she disappeared. The guardian opined that Bo’s decision to return to Washington for her child’s birth where people knew her was a gesture of love and care on her part, perhaps the most she could give in her addicted state.

The Indian Child Welfare Act was enacted to end the near-wholesale removal of American Indian children who entered state social services.

After his narcotics dose was weaned down from morphine to Tylenol with codeine, Danny was released to the care of Miriam and Rodney, but he was demanding and fussy. He needed almost constant attention and holding, according to Miriam. She and Rodney grew exhausted and informed CPS that they were not strong enough to care for Danny.

They returned him to the care of CPS and gave them our contact information, assuming the agency would contact us about adopting him. Other than that, Miriam was unsure of Danny’s whereabouts.

At that moment, an insistent spirit seemed to grab hold of me. This spirit would not let me rest until I found Danny and brought him home to us.

Several weeks and many frustrating phone calls later, I found him. The county’s CPS in Washington seemed to have no idea of precisely where he was; his assigned social worker had never met him. However, Miriam had the name and contact information of the woman with whom CPS placed Danny for what Miriam assumed would be a temporary placement.

The woman, a stay-at-home single mom, housed several foster children for the county. Apparently, CPS had already informed her that the tribe might exert jurisdiction over Danny; she was very angry when I called her. “Don’t you people realize that the Lord had chosen me to raise Danny?” she said. I could hear the outrage in her voice as she shouted at me over the phone as her radio, tuned to a Christian prayer show, blared in the background.

I went into investigative journalist/Ojibwe mama bear mode. I pestered the tribe, the county social agency and every other government and private agency that I thought could even remotely help us in getting him away from county jurisdiction and placed under tribal authority. I made daily phone calls from Ohio to Washington driven by that dogged spirit.

I learned that Danny’s maternal grandmother also lived in Washington state, in the same county that had custody of him; I was able to find her phone number. Why, I wondered, hadn’t she or other family members stepped forward to care for Danny? I learned that the family’s story of generational dysfunction was all too familiar in Indian country. At least four generations of the family had been raised in foster care, their children taken away by non-Native governmental social service agencies that have long claimed to know what is best for Native children. I was able to speak to his grandmother on the phone. She told me she was happy a Native family was getting her grandson; she’d been upset over Lena’s adoption into a white family. Her concern, however, didn’t seem to extend to intervening herself. Like other Native families I’ve met, she seemed to have internalized the message repeated over and over by the boarding school experience and government agencies that Native folks are basically incapable of successfully raising their own children.

In order to proceed with the adoption, however, we had a major stumbling block.

During our efforts to adopt in the 1990s we found it impossible to find any agency in our region, either public or private, that would prepare a home study for us, an essential requirement in all adoptions. Since there are no tribes in the area, adoption agencies have very limited knowledge of or experience with the Indian Child Welfare Act. At the time, we were unable to find any organization willing to conduct a home study for us.

In an almost mystical example of synchronicity, however, my husband and I found a Cherokee woman in our area who was also a licensed social worker in the state of Ohio. My tribe agreed to accept the home study conducted by the Cherokee social worker and officially licensed us as tribal foster parents.

The Cherokee social worker and I flew to Washington and met with Danny’s social worker in March 2005. She took us to his foster placement, a home she had never visited in her six-month role as his social worker. The home was several hours’ drive away and required that we pass through Canada in order to reach Point Roberts, Washington, a tiny, remote corner of Washington State. As we got out of the car and approached the foster mother’s home, we could hear a Christian radio show blaring prayers from inside the trailer home, located in an overgrown lot.

The press typically portrays the Indian Child Welfare Act as an obscure law that unfairly targets mixed-race Native children in order to fulfill a politically correct vision of righting wrongs against Native people.

Dogs barked loudly outside; the inside of the trailer reeked of wet dog, and the scant furnishings were covered in dog hair. The doors and windows were shut and the dark curtains drawn, as though to barricade the trailer’s inhabitants from the prying eyes of the outside world.

Danny’s foster mother was not happy to see us. She crossed her thin arms over her chest and angrily insisted that the social worker provide more money for what she had spent on Danny. She then waved us toward a sofa while she disappeared into another room. The sofa’s legs were broken off so it sat directly on the floor. Covered with a dirty bedspread, it threatened to swallow us into its musty depths as we sat down.

She emerged with a smiling 7-month-old baby boy wearing bib overalls. As I tried to extricate myself from the sponge-like sofa, she angrily tossed him at me. Although I was off-balance and surprised, I caught Danny in my arms. He looked up at me with a triumphant smile that seemed to ask what had taken me so long to arrive.

We quickly gathered up his few possessions, a car seat, some clothing and made a mad dash back to the county courthouse, where we had a hearing for Danny’s placement in a couple of hours.

It was a rush but we made it just in time for the hearing. Disheveled and out of breath, we waited while the county judge spoke to my tribal judge via speakerphone. Both judges quickly rattled through the legal jargon until they agreed that I could officially take custody of Danny. We breathed sighs of relief and turned to leave.

The county judge, however, stopped us. “The court has one final request,” he said sternly. I felt as though my legs had been cut from under me; I grabbed the chair for balance as I looked at this officer of the court, a white man in a black robe who from all appearances had never cracked a smile in his entire life. I feared the worst.

“I want to hold the baby,” he said. Danny bubbled and kicked his legs as the judge smiled from ear to ear and held him high in the air.

The next day, we flew home. My husband John and our daughter Rosa met us at the airport; John opened his arms wide and said, “Welcome home, my boy.”

Danny snuggled down between us in bed that night; it was as though he’d never been anywhere else.

In the last couple of years he has begun to ask about his birth mother. Although it hurts me, I always tell him the truth. Listening to him as he tries to wrap his young mind around the subject of addiction is acutely painful. At first, he had suggested it might help her if he sold his Legos and gave her the money. After going through the rigors of our traditional lodge last summer, however, he seems to have grown pensive and more astute in his attitudes toward people.

We’ve since learned more about Danny’s relatives. He comes from a long line of medicine people, visionaries who were well-known and respected. Like many of our spiritual people, however, their ways brought them into conflict with non-Native authorities. Many were sent to jail and/or descended into addiction.

Danny carries his relatives’ sensitivity and empathy for the human spirit. For instance, he insists on giving money to the beggars holding signs asking for money for food and housing at stoplights we so often see here in the city. Although John will note that the unfortunate folks likely want to purchase drugs or alcohol, Dan will insist on giving money. “Maybe that’s what they need today,” he will say.

As he grows into young manhood he speaks of meeting his mother soon, while she is still alive. His favorite activity is to go over all the notes, cards, photos and papers that came with him from Washington to Cincinnati. I have saved everything for him, even the curious metal tags with tiny bible passages written on them by his last foster mother. He especially loves to see the card signed by all the nurses who cared for him in the NICU, all expressing their love and belief that he will grow into a fine young man.

As for Lena, Danny’s half-sister, we maintain contact as best we can, sending her manoomin, exchanging birthday cards and occasionally talking on the phone. She will be 16 this December; when she needs to know her Ojibwe roots, we will be ready, waiting.

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