Adoption Nightmare: Finalized Adoption Challenged, Child Removed
Legal Finalized Adoption Challenged by Native American Tribe
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.
Sources:
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 )
http://www.law.cornell.edu/uscode/html/uscode25/usc_sec_25_00001603----000-.html
Published by Daniella Nicole
Syndicated blogger for The Fritch Show. Writer of web content, reviews, multiple showcased & featured articles, blogs, more. Published contributing author. Contributing editor. Niches: dating, relationships,... View profile
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- A birth mother deemed 'unfit' got a Native American tribe to get her legally adopted child back.
- Though cited, the Indian Child Welfare Act does not cover those less than 1/4 Native American.
- This case may be one more thing that drives prospective parents away from the adoption option.
7 Comments
Post a CommentThe law of the land is the law of the land. If you don't want a tribe swooping in and taking back whatever baby you buy, don't buy an Indian baby. Simple. And it's not just "race." It's heritage. Which every infant has, by the way, not just American Indians. Why don't you think real hard about what you're taking away before you go buying a human being. You're only going to have them for their childhood. They have to live with the loss of their original family for the rest of their lives. There was a father in this case. There was an extended family. There nearly always is.
It doesn't matter what his "heritage" is...he was LEGALLY adopted. This is just another example of judges making laws from the bench. My heart breaks for the family. This is just a matter of pure selfishness and not doing what is in the best interest of the child. I'm speaking as an adoptee. Thanks for covering this Daniella!
My heart breaks for the pain of the adoptive parents. If this child fell under the Indian Child welfare Act then their should have been an effort to find an appropriate Native family BEFORE placing the child. I don't know how long the child was with the adoptive parents, but if s/he was there long enough to bond then removal was not in the child's best interest even considering the *possibility* of negative cultural issues. Transracial adoptions can work just fine if the adoptive parents are attentive to the child's special cultural needs. If this child ends up in foster care rather than a permanent loving home, just to avoid a statistical loss to the tribe, then it is an unconscionable act that disregards the best interest of a child.
Native children NEED to BE with Native parents !!!!
I wasn't aware of this. I thought that once a child was legally adopted, that it was virtually impossible to reverse the adoption, except of course in rare cases of illegal adoptions where children were kidnapped and forcibly placed with a different family.
Sophie
Note that in the 1830s, John Ross was 7/8-Scotch/Irish and only 1/8-Cherokee by descent when he was elected Principal Chief of the Cherokee Nation. He valiantly fought against the removal of the Cherokee tribe from Georgia.
That said, I wish the Ojibway woman had not let her child go out of the tribe in the first place, regardless of the reason. It must be torture for the people who adopted Talon.
At first I didn't realize that this is an infant we're talking about. Significant is that the Ojibway tribe itself came to get the child, along with the police. So in the eyes of the tribe, the child is Ojibway. Different tribes have different requirements on what it takes to become a tribe member. Section 1603 says ""Indians" or "Indian", unless otherwise designated, means any person who is a member of an Indian tribe, as defined in subsection (d) of this section" or "(3) is considered by the Secretary of the Interior to be an Indian for any purpose". Section d says "(d) "Indian tribe" means any Indian tribe, band, nation, or other organized group or community". The first or second degree blood applies more to education and health aid, as I understand it. I'm all for keeping Native Americans with their own people, however "Indian" is defined.
Being "Indian" is a matter of the heart as well as blood. Note that in the 1830s, John Ross was 7/8-Scotch/Irish and only 1/8-Cheroke