This guest post was written by Laurie Rottach.

ICWA and the Responsibility of Adoption Agencies
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Adam Liptak’s article, “Case Pits Adoptive Parents Against Tribal Rights” that was published in the New York Times on December 24, 2012 makes connections between a past Supreme Court decision from 1989 that involved the Indian Child Welfare Act (ICWA) and voluntary adoptions and the current “Baby Veronica” case that will be heard by the Supreme Court regarding the voluntary adoption of a Native American child to a white couple. In both cases, a Native American child was voluntarily placed by parents or one of the parents with a white couple for adoption. In both cases, the tribes were not notified, despite the fact that ICWA requires adoption agencies to do so*. And, in both cases, by the time the tribe found out about the intended adoption, the children had already been placed with the white parents and strong attachments had been formed. In the 1989 case, the Supreme Court ruled that the children should be returned to the tribe. In the current case, it is unknown what the ruling will be.

Unfortunately, Liptak misrepresents the real issue in this case by making the case about ICWA and the tribe versus the prospective white adoptive parents and ends up promoting the myth that Native American children would be better off with white families. He spends the majority of the article writing about the Native American biological father and the adoptive white parents in a rather biased way. When he talks about the adoptive parents, he quotes the South Carolina Supreme Court that stated that they were “ideal parents who have exhibited the ability to provide a loving family environment” and he mentions that the adoptive father works at Boeing and the adoptive mother has a doctorate in psychology. However, when Litptak mentions the biological father, he only identifies him as a member of the Cherokee Nation and as absent from the child’s life. He does not mention that the father is a member of the United States military that served in Iraq and that as soon as he realized that he had mistakenly signed away his rights, he pursued legal help to reverse the action right away.

Interestingly, Liptak does not mention the adoption agency that failed to properly notify the tribe of the adoption as required by the law. If the adoption agency had done this in the first place, this case would not even exist. Baby Veronica would have found her way back to her father and her tribe and the adoptive parents would not have gotten the chance to think of her as their own child. In my mind, this case raises the issue of the ethical and legal obligations of adoption agencies rather than issues with how ICWA is being applied. The law is clear. Adoption agencies need to notify tribes regarding the adoption of Native American children.* Adoption agencies must begin to think of tribes as their clients along with children, biological parents and adoptive parents. In his article, Liptak implies that ICWA produces “heartbreak” for the adoptive family that have loved and cared for baby Veronica, but, in reality, it is not the law that produces heartbreak, but the adoption agencies that do not properly follow the law.

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Edited to add: while not all states (see note below) require agency notification in private adoptions involving children who are enrolled or may be eligible for enrollment in a tribe, it could be thought of as a best practice issue. At the very least it is important for the child involved to have certain knowledge of his or her tribal affiliation (if any) as part of his or her social history.

* In many states, including Minnesota, agencies are required to notify tribes even in private placements. Not all states have this requirement. Oklahoma, the state in which Veronica was born, does require notification. For example, the Adoption Choices of Oklahoma website states: If a birthparent has Native American Indian in his or her background and names a tribe, we must notify the tribe of her intention to place the infant for adoption, and requesting that they provide us with a letter of non-intervention. As soon as we know of this situation we write to the tribe immediately, even if it’s prior to delivery. Failure to ask for tribal permission can result in the tribe overruling an adoption, even if it has been finalized. It is extremely important to acquire their permission if the child is tribally affiliated.