Last month on our blog, we posted an excerpt from an American Academy of Adoption Attorneys (AAAA) press release. This press release expresses the concerns of AAAA on recently issued guidelines from the Bureau of Indian Affairs (BIA) that severely restrict available options for orphaned or fostered Native American children.

In response to these new guidelines, American Adoptions has joined AAAA and many other adoption organizations (including the National Council for Adoption, Florida Adoption Council, and Metropolitan Adoption Council of Greater Kansas City) in expressing their deep concern with the way in which these guidelines were promulgated and published by writing letters to the Department of Interior urging them to reconsider.

In its letter, American Adoptions says:

The new guidelines were drafted without adequate conversation with and representation of … adoption professionals and child advocates. Collectively, we feel we were misled about the opportunity for discussion on this topic, and that the new guidelines were issued by edict rather than collaboration. The federal government seems unwilling to hear from those groups who have been in the field for many years working directly with the families and children who will be negatively impacted by these guidelines. 

These guidelines were implemented to supplement the Indian Child Welfare Act (ICWA); a federal law enacted in 1978 in an effort to keep fostered and orphaned Native American children from being removed from their tribes and to preserve Native American culture and tradition.

The BIA originally drafted the guidelines when the law was enacted and used them to serve as a guide for child welfare professionals in cases where Native American children were removed from their homes or placed for adoption. In these cases the child welfare professionals were advised to work in the best interest of the child while also preserving the rights of the tribes.

However, in response to the Baby Veronica Supreme Court case of 2013, the BIA has updated these guidelines adding stricter policies that the coalition believes put the rights of the tribes over the rights of Native American children and birth mothers wishing to place their children for adoption.

Among other things, the guidelines would:

  • Broaden the cases to which ICWA is applicable
  • Negate the rulings of the U.S. Supreme Court in the Baby Veronica case
  • Ignore the confidentiality rights of biological parents
  • Usurp the authority of Congress to amend ICWA
  • Change the definition of Qualified Expert as developed by the courts
  • Remove the “best interest of the child” and “attachment issues” from consideration by the courts

The guidelines state that “ordinary bonding or attachment that may have occurred as a result of a placement or the fact that a child has, for an extended amount of time, been in another placement that does not comply with ICWA” is not adequate reason to consider leaving a child in said placement. This is one of the primary concerns for many in the adoption and child welfare fields.

Many in the adoption community argue that the disruption of an attachment or bond with a foster or adoptive parent can cause great damage to the children. American Adoptions notes that this destruction can result in significant trauma to the child, including physical, emotional, and cognitive delays, which can be permanent and irreparable.

Beyond the rights of the children, adoption professionals also argue that the individual rights of the birth parents should not be ignored. This includes their right to choose an adoptive family for their child as well as their right to maintain their privacy throughout the process, both of which the American Adoptions believes are being cast aside in favor of the rights of the tribes.

Shawn Kane, executive director of American Adoptions and adoptive father of a Navaho daughter, says that his daughter’s birth mother’s privacy and confidentiality was of the utmost importance to her. Now, three years later, she still talks about the importance of these rights during the adoption process.

“These rights are not just a temporary decision,” Kane said. “These rights protect birth parent’s choice for what they think is the best interest of their children.”

While these guidelines do not, as of yet, have the authority of a federal law or regulation, adoption professionals fear that, if and when they are given weight by courts or child welfare agencies, children will surely be hurt.

“While I understand the need to preserve Native American culture, I do not believe that this preservation should come at the detriment of the children and parent’s innate rights,” Kane says, mirroring the press release from AAAA. “I am shocked that the BIA would issue guidelines that seem to blatantly sidestep legal protections for birth parents and children, particularly those in foster care.”

More Ways to Get Involved

If you oppose these strict new guidelines and want your voice to be heard, here are some ways you can get involved:

  1. Send your comments to the government
    • Go to regulations.gov
    • Type “BIA-2015-0001” into the search box
    • Go to the “Comment Now” box
  2. Sign the National Council for Adoption’s letter to show your support
  3. Attend one of the BIA’s public meetings OR Send a letter to Jay McCarthy expressing your concerns to be submitted during a meeting on your behalf
  4. Sign the petition and spread the word on social media with this link
  5. Talk to your adoption professional. Make sure they’re aware of the issue and let them know your concerns.

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American Adoptions is committed to following ICWA legal procedures in all of our adoptions and provides ongoing training for our staff members via ICWA and adoption experts. Of the adoptions at our agency, only about 5 percent involve a child with Native American heritage. Additionally, each time an adoptive family is presented with an adoption opportunity with a birth mother, they will be briefed on the financial, legal and birth father situation of the adoption, including any details related to ICWA. Please contact us at 1-800-ADOPTION with any questions on this topic.

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