June 8, 2007
I have a very unique situation and am looking for answers.
I am 1/64 Cherokee, registered member of our tribe. I however, do not receive any benefits from our tribe, have never lived on the reservation or was raised with our Native American culture and beliefs, nor have any family members for generations.
Through unfortunate circumstances, over the past 30 months, we rescued my niece from a harmfully neglectful home. We took her from her parents, (my brother and his wife) with their permission. The idea was to be temporary situation. However, their circumstances has not allowed the return of their daughter and we found it necessary to place a restraining order against them, and was granted full custody of this child by the state of Colorado.
We did not seek representation when we went to court, and were not told of ICWA. We then, knowing that we could not raise this girl indefinently, though we have come to love and adore her, went to TX, where her parents reside, and removed parental rights and was awarded conservator of this child, granting us the rights to make decisions in the best interest of this child.
Again, we had no idea that ICWA was a reality. We most certainly want the very best for this child. We have no problems with a Cherokee family adopting her, but she is more Belgium and German than Indian, and have no problems with any other race adopting her either, as long as they can meet her very specific needs.
You see, because of extreme neglect, she has an attachment disorder, sensory deprivation, lead poisoning, developmental delays, considered autistic at 2 years of age (which no longer applies, but is at high risk of regression), Nordic in color – very blond, blue eyed, very fair complexion and a placement needs to take place before the start of Kindergarten. We, again not knowing of ICWA, contacted a private Christian adoption agency and have found a perfect family. They have worked with IEP’s in schools and with specialists, have had a home study completed, have taken classes on attachment disorders, have older children who she can emulate, rather than younger children to whom she will regress towards, are blond and blue eyed, which is important in helping her assimilate with her attachment issues, culturally and spiritually they will raise her as she has been raised for the past 3 years and they live near us allowing for a gradual transition, limiting regression.
Again, our niece has not been removed from an Indian culture, never placed in social services or involved in the system. She is only 1/128th Cherokee. We are looking out for her best interest, and with that in mind, being a member of an Indian tribe is but one small consideration we have.
According to ICWA, the adoption agency contacted the Cherokee tribe, which immediatly wanted jurisdiction over this child, and without any
considerations of her special needs, determined that they would place her with whom they chose within the Cherokee nation. Fortunatly, at this point, were not given our names. But from our prospective, ICWA, threatens the welfare of my niece. My fear is that she will be lost in a social service system and her recovery from neglect and abandonment will be lost.
Can you give us any advice on how we can proceed with the adoptive family we have in mind?
UPDATE August 2, 2007
Thank you for your encouragement. We have put the adoption on hold. Over the summer, I have talked to both a state representative and a federal state representative, the BIA in Washington DC, Cherokee Kid’s Director (Without giving the name of the child) and an attorney friend who works for the Ute Tribe in our area…
The State Representative could not help other than to say Federal Law always preempts State Law, so ICWA would over rule all state rulings giving us guardianship over our niece. This is of course of great concern.
Our Federal Representative, Congressman Salazar, his office was more helpful and showed more concern. Salazar replaced Campbell in the House. Remember that Campbell has been the only Native American to be in Washington, and there is a lot of Indian Relations that go through our area. (SW Colorado). I proposed to them that ICWA needed to be amended to provide for children who had no Native American contact. Our family has not been on the reservation in 4 generations and has no ties to the culture. The Aide I worked with agreed that the law should be looked at. He was able to do a congressional search for me concerning the law it’s self and I asked specifically if he could find out what my rights in the situation might be. He faxed me his findings so I have no way of sending them your way at this time. Basically he cited the one Supreme Court case in Mississippi, but also gave me some gray areas to look at such as hardship getting to the trip for court, and showing good cause for children over the age of 5. It was pretty, however clear that ICWA was written with very little wiggle room and that each tribe had their own way of interrupting the wiggle room.
Taking with the Director of Cherokee Kid’s, I found out that my brother is an enrolled member, so even though my niece is only 128th Cherokee, she belongs to the tribe. I also found out if the child is a child over 9 mos old the child must be a member of the tribe or the child of a member before federal law applies. However, in various state court systems the judge will apply ICWA knowing the child is eligible and could register at any time during the proceeding. So I don’t know but maybe the child under 6 months has a chance not to be under ICWA if born off the reservation.
My attorney friend sited law which said that ICWA had “preference”, meaning the tribes would first try and find family member, then tribal members, and finally any Native American Family to adopt the child. However there is a “Good Cause” exception which is very vague. According to what my representative sent me, this “Good Cause” can apply to any child over the age of 5. This we believe is a small crack of hope in our favor, as our niece is 5. But according to our adoption agency, they were told by the Cherokee’s that they have never placed a child outside a Native American family.
What I have found in talking with BIA and the Director of Cherokee Kid’s is that their social service system is a bureaocracy. They are interested in laws, procedures and not the individual situation these children find themselves in. There is an automatic assumption that if you are putting the child up for adoption, you do not care about the child, and any family who will take a child is better that the situation the child is in. This should not be assumed. It is not the case in our situation. We are looking out for the best interest of this child and do not need a burroaocracy to do it for her.
I can not afford time or money to go to DC, but if I can be of further help, please let me know.