There are two portraits on display in Jennifer’s Mesa living room. Two little boys. Dark-eyed with chubby cheeks, impish grins, and thick, black hair. They look so alike in their striped shirts, it’s easy to mistake them for the same child.
Even Jennifer’s toddler, Jacob, the subject of one of those portraits, a canvas print on the wall, struggles to keep it straight.
“Jacob!” the 3-year-old says, fixing a pudgy finger on the other child’s photo, framed in lacy gold atop a chaotically stuffed bookshelf.
Jennifer, bouncing him on her hip, chuckles and gently corrects him. “No, honey,” she says. “That’s Bubba. Remember?”
She plucks a glossy black photo album from the bookshelf, where it’s wedged between a folder of handprint paintings and crayon drawings that Bubba — or James, as he is legally known — made in day care, and a folder of his medical records. The words “My Special Boy” are printed across the front underneath a picture of James at about 18 months old in a red polo shirt, hair neatly parted, laughing so hard you can see his tonsils. It’s one of the last photos Jennifer — whose name has been changed for this story — ever had taken of him.
With Jacob snuggled up on the couch next to her, she spreads the book across her lap. “Here’s Bubba with Grandma,” she says, flipping through the pages. “Here’s Bubba with Grandpa.”
She pauses wistfully when she gets to a photo of herself, cuddling James close, smothering him with kisses.
“Mommy!” Jacob offers helpfully.
“Yes, that’s Mommy,” Jennifer assures him. “Who’s that?” she asks, pointing to James.
“Jacob!” the toddler exclaims.
She corrects him again.
A part of her wishes the toddler could recognize James because of the special place he holds in her heart. But another part loves that the two boys look so confusingly similar. It makes her feel like they could be brothers — as they nearly were, and, as she argues, they should have been.
Jennifer, 42, welcomed both boys into her home as part of Arizona’s foster-care program when they were just a few days old. Both boys’ parents abandoned them and stopped participating in state reconciliation efforts. In both cases, Jennifer happily volunteered to adopt after caring for them for more than a year.
But while Jacob’s adoption was smooth and quick, James was yanked away from the only home he’d ever known. Now 5 years old, he’s still languishing in foster care. The 18 months he spent with Jennifer is the longest he’s ever stayed in one place.
Jacob is full-blood Hispanic. James is part Hispanic, part Native American.
The federal government in 1978 created a separate set of rules for tribal children that makes it more difficult to remove them from their parents’ custody and place them for adoption with a non-tribal family. The law, called the Indian Child Welfare Act, had a noble goal: to combat rampant anti-Native American bias in the foster-care system. Native American children were — and still are — significantly overrepresented in the child welfare system. About 13 of every 1,000 live with foster parents, which is more than any other ethnic group, and almost three times the rate for white and Hispanic children.
Nearly 40 years later, though, the law faces a challenge from an unlikely source: some 1,600 Native children like James, and the non-tribal parents who have tried to adopt them. A class-action suit, filed in federal court by the Phoenix-based Goldwater Institute, argues that the Indian Child Welfare Act actually encourages racism by preventing the court from acting in Native American children’s best interests.
Adi Dynar, an attorney with the conservative think tank, contends that these children are often left in unsafe environments or spend years bouncing through the foster-care system because the Indian Child Welfare Act places them in a “penalty box” that prevents adoption.
“This is good intentions gone bad,” Dyner says. “We’ve created separate, unequal treatment for children of Indian ancestry.”
Even the law’s champions admit that the Indian Child Welfare Act has not worked as intended. They argue, however, that the issue is improper implementation.
In an attempt to expedite court proceedings, many attorneys and judges have started advising mothers to deny their Native American heritage or hide the paternity of a Native American father, says Kevin Washburn, a professor of Indian law at the University of New Mexico and a former assistant secretary for the Bureau of Indian Affairs.
“The Indian Child Welfare Act is a great law,” says Washburn, who is named as a defendant in the lawsuit because of the work he did for the federal government. “It’s just not living up to its potential, because it’s being violated frequently.”
Jennifer is a petite single mother with dark, shoulder-length hair, a wide smile, and a fiery demeanor. Her first job out of graduate school, in 1999, was with Arizona’s Department of Child Safety, then known as Child Protective Services. At the time, she had dreams of opening a private counseling practice, but she took the job because the government, in an effort to recruit caseworkers from Arizona State University, offered tuition and a monthly stipend in exchange for a two-year commitment.
She stayed until 2012.
For the first six and a half years, Jennifer helped parents whose children had been removed from their homes because of abuse or neglect get their lives in order so they could be reunited. For the second six and a half years, she worked to help children find adoptive families or permanent guardians after their parents had lost their rights.
Eventually, she decided to foster children in her own home. She had always wanted to be a parent, but she was 37 and hadn’t found the right guy.
“I had seen other single mothers making it work,” she says.
She was open to the idea of adoption, but her main goal was to build a supportive, open relationship with biological parents that helped them move toward successful reunification. She was excited to be a cheerleader — the kind of foster mom who sends the biological mom photo albums and weekly updates about the child’s development, the kind of foster mom whom a biological mom might call to babysit if she needed a break after DCS had returned her child.
When the state called to ask her to take James in June 2011, though, she balked. Would she take a Native American baby? They wanted to know.
“No,” she said. “Nope. Nope. Nope.”
She was intimately familiar with the Indian Child Welfare Act, and she wanted nothing to do with it.
Beginning in the mid-1800s and continuing into the 1970s, tens of thousands of Native American children were removed from their homes — often by force — and enrolled in boarding schools designed to assimilate children into white culture. The most well-known of these schools, where children were forbidden to speak their native languages and forced to do domestic labor, adopt European-style grooming, and embrace Christianity, was the Carlisle Indian School in Pennsylvania, run by Col. Richard Henry Pratt. Pratt’s motto was “Kill the Indian, save the man.”
Government social workers also needlessly pulled many Native American children away from their parents because of cultural bias. Native Americans’ communal approach to parenting, which emphasizes extended family, was labeled as abuse and neglect. Many children were taken simply because their parents were poor.
In 1958, the federal government funded an adoption project, headed up by the Child Welfare League of America, with the sole goal of placing Native American children with white families.
By the time Congress passed the Indian Child Welfare Act, the Association on American Indian Affairs estimated between 25 and 35 percent of all tribal children were being removed from their parents. Eighty-five percent were placed in non-Native homes or institutions.
Arnold Lyslo, director of the federally funded Indian Adoption Project, heralded the adoption trend as a triumph against racial prejudice. “One can no longer say the Indian child is the ‘forgotten child,’” he said at the time.
Native American activists, however, denounced it as genocidal.
The Indian Child Welfare Act raised the burden of proof for both placing a Native American child in foster care and terminating parental rights. For Arizona to take a non-Native child into protective custody, for example, the state must only show there are “reasonable grounds” or “probable cause” to believe that doing so will “protect the child from suffering abuse or neglect.” For Native children, the state must meet a higher legal standard by producing “clear and convincing evidence” that there likely will be “serious emotional or physical harm to the child” if he or she is not taken into protective custody.
The act also requires the state to work harder to reconcile a Native American child not only with his or her family, but also his or her tribe, than they might with a non-Native child. Congress was vague about exactly how far social workers have to go to mend ties, but the Bureau of Indian Affairs, in guidelines Washburn issued in 2015 to clarify application, stipulated that reunification efforts should continue even in the face of aggravated circumstances, such as “abandonment, torture, chronic abuse, and sexual abuse.” For parents of all other ethnicities, the federal Adoption and Safe Families Act is not so forgiving.
Once it is determined that a child should be placed in foster care or put up for adoption, the Indian Child Welfare Act requires that the state first attempt to place the child with a member of his or her extended family, second, with another member of the tribe, or third, with another Native American family.
Supporters, including the Child Welfare League of America, which, in 2001, denounced its work placing Native children with white families as “biased and hurtful,” praise the Indian Child Welfare Act as a “gold standard” for child protection.
“These aren’t perfect scenarios like we’d see on Leave it to Beaver or Father Knows Best,” says the University of New Mexico’s Washburn. “But any time we can restore a child with their rightful parents, that’s a good result.”
The extra hurdles, however, significantly increase the amount of time tribal children spend in court — and away from permanent families.
If the Arizona Department of Child Services suspects a Native American child is being neglected or abused, it takes longer to get them to safety than it does for a child of any other race because of the additional burden of proof, Dynar says. Once they are placed in foster care, years often pass before the children are either reconciled with their parents or the state decides to sever parental rights.
Although the Indian Child Welfare Act requires the court to keep tribes informed when the Department of Child Services picks up a child with Native blood, it is common for officials to wait until the topic of adoption is broached before transferring the case from state to tribal court, dragging out the process even longer, he says.
In the meantime, because there is a severe shortage of Native American foster families, the vast majority of children are placed with non-tribal families who are not allowed to adopt them when the option arises. The courts often struggle to find permanent tribal homes for the children, so they end up bouncing from place to place until they turn 18.
When foster parents take their cases to court individually, they almost always lose, Dynar says. But in a rare ruling, an Arizona Court of Appeals judge determined in August that the Gila River Indian Community had waited too long to challenge a prospective adoption, allowing the non-tribal foster parents to maintain custody.
Dynar calls it a “step in the right direction.”