|Lost Children, adopted out|
Bual, Harman (2018) "Native American Rights & Adoption by Non-Indian Families: The Manipulation and Distortion of Public Opinion to Overthrow ICWA," American Indian Law Journal: Vol. 6 : Iss. 2 , Article 6.
Available at: https://digitalcommons.law.seattleu.edu/ailj/vol6/iss2/6
The public’s general lack of knowledge regarding the history of ICWA and the standards set up by ICWA allows for easy manipulation by adoption agencies and ICWA opponents. A lack of understanding and sensationalized media supports a negative image of Indian tribes that overshadows the protections offered by ICWA, and the improper behavior of adoption agencies and attorneys who encourage adoptive parents to go against the clear standards set out in ICWA.117
This is a difficult situation to address, given the U.S. Supreme Court ruling in Baby Veronica, because it fails to acknowledge the historical reasoning for ICWA and maintaining a relationship between an Indian child and its tribe.118
However, the behavior of these adoption agencies and attorneys who are creating delays in the system, and actively working the system to get around ICWA statues, should face some sort of monetary fine. Fines would need to be determined on a case by case basis, but could be based on whether there were improper delay tactics, the length of time the litigation took due to improper delay tactics, and whether the adoption agency knew or had reason to know the child was an Indian. Policies surrounding the custody of children as a whole are inconsistent and create conflicting goals and procedural issues when applied.119
To overcome these issues, it is necessary that both legislators and ICWA supporters find a common ground where the agencies responsible for determining a child’s membership status are able to do so in a timely manner and hold foster families and Indian families accountable if they fail to follow reunification plans set by these state agencies.
Despite the intent of Congress, state courts have continuously interpreted ICWA in a variety of ways that has created loopholes around the mandates.121
Large cases in front of the Supreme Court of the United States has brought attention to ICWA on a national level.122
However, ICWA is often portrayed as a set of rules that ignores the best interest of the Indian child in favor of satisfying the demands of Indian tribes who may not be capable of taking care of the Indian child as well as an already established home with an adoptive family.123
This perception has been further manipulated within the media by ICWA opposition in an effort to dismantle ICWA.
The history and purpose of ICWA has been misinterpreted by courts applying it within custody cases of Indian children. For ICWA to be successful, it is necessary that states and courts identify
the child’s tribe and give proper notification to the tribes. ICWA was established to stabilize the growth of tribes that had diminished after decades of assimilation of tribal members into mainstream American society. Despite the set guidelines within ICWA, states apply ICWA differently within each court, which creates disproportionate protection to Indian children, parents, and tribes.124
To combat improper application of ICWA it is necessary that clarification of ICWA is provided to state child welfare workers, adoption agencies, judges, and society.
Media uses the emotional pull within ICWA adoption cases between Indian tribes and non-Indian adoptive families to undermine the protection given to tribes under ICWA and limit tribal rights.
Proper application of ICWA would prevent many of the cases being reported on by news media because many years of litigation would be avoided. And most importantly, the Indian child developing ties to a family the child should not have legally been placed with could be prevented because many years of litigation would be avoided. And most importantly, the Indian child developing ties to a family the child should not have legally been placed with could be prevented.
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