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.”
“C’mon, Jennifer,” the caseworker begged. “It’s a brand-new baby.”
There was some uncertainty, she says, among Salt River Pima-Maricopa Indian Community authorities about whether James even qualified for enrollment in the tribe, which is a requirement for the Indian Child Welfare Act to go into effect. James’ father was Hispanic. His mother’s heritage was unclear. Her mother (James’ grandmother) was half Salt River Pima-Maricopa Indian, but her father wasn’t named on her birth certificate.
The 20 federally recognized tribes in Arizona are sovereign governments, so they each have different methods of determining membership. The Salt River Pima-Maricopa Indian Community requires a child be a direct descendent of an original tribe member with at least one-fourth Native blood. In James’ case, that meant his grandfather needed to be at least half Salt River Indian.
Even if the Indian Child Welfare Act applied to James, though, the caseworker assured Jennifer, she had already identified an aunt and uncle who were willing to take the boy. She just needed to conduct a background check to ensure he was heading to a safe environment. Jennifer would only need to keep him a few weeks.
Jennifer, still harboring idealistic dreams of co-parenting, asked to meet James’ biological mother when she picked up the baby from Mesa’s Banner Desert Medical Center. But the mother refused. Jennifer found him curled up in a clear plastic bassinet in the back corner of the hospital’s nursery.
James weighed 8 pounds, 8 ounces. His hair was thick and dark. He was so chubby, she joked, he looked like a “little sumo wrestler.” His mother, 19, had used methamphetamine throughout her pregnancy, so James was born addicted. As he detoxed, he cried excessively, his little body shaking. His legs stuck out tight and stiff. A brain scan revealed parts of his brain hadn’t developed properly, putting him at risk for developing a seizure disorder or cerebral palsy.
By August 2011, DCS had informed Jennifer that James’ aunt and uncle had failed the background check and weren’t eligible to take him in. The uncle had been convicted of aggravated assault with a deadly weapon. The aunt had been caught driving drunk so many times she had to have an ignition interlock device installed on her car.
By October, James’ mother had dropped out of her substance abuse classes and was only showing up to her scheduled visits with the baby once a month. By December, she’d stopped coming at all.
In January, DCS asked Jennifer if she would consider adoption. This time, there was no hesitation. She had fallen in love. She started the process of becoming certified to adopt, and chose a new name for James: Benjamin Philip.
On his first birthday, they sang “Happy Birthday, dear Be-en” as the toddler, sporting a bib with a polka-dot “1” on the front, shoveled cake into his mouth fist over fist, covering himself in blue and green frosting. Her friends showered him with gifts: clothing to grow into, building blocks, a plastic car he could sit on and scoot around with his feet.
A week later, she headed to court expecting the judge to change James’ case plan from reunification to severance and adoption. Instead, she learned the tribe had established paternity for James’ mother and determined her children were eligible for enrollment. They were going to take jurisdiction of the case.
Jennifer felt nauseated all through the proceedings but managed to hold it together until she got in her car. Then she burst into tears.
She called in sick to work and cried all the way to the day care center to pick up James. She didn’t know how long she’d get to keep him. She didn’t want to waste a minute.
“I walked in thinking, ‘This could be one of the best days of my life,’” she said. “I walked out knowing it was the start of the worst time of my life. It felt so unfair. I had cared for the baby for almost two years, and now, all of a sudden, because of the color of my skin, I couldn’t keep him.”
The bond between child and caregiver, vital to a child’s emotional and social development, is often the strongest argument for adoption in a traditional child-welfare case.
The Indian Child Welfare Act, however, requires that the court “must always” attempt to place a Native American child with a member of his or her tribe unless it can produce clear evidence that there is “good cause” to do otherwise. The federal Bureau of Indian Affairs, in its 2015 guidelines, specifically instructs the court that “ordinary bonding or attachment that may have occurred as a result of a placement” or the fact that the child has been with a foster family for an “extended period of time” does not constitute good cause.
“The good-cause determination does not include independent consideration of the best interest of the Indian child,” the guidelines state. The Indian Child Welfare Act’s placement preferences reflect the tribe’s best interest, which is, by extension, the child’s best interest.
Steve and Kelly, one of several lead plaintiffs in the Goldwater Institute’s lawsuit, took in Christopher when he was less than a year old, tiny teeth rotted from too much Kool-Aid, face blackened with dirt, drowning in a dingy superhero T-shirt that was three sizes too big (names have been changed). Both are over 50, with silver streaks in their hair, and have a 13-acre organic farm where they raise chickens and grow carrots, lettuce, pumpkins, and other vegetables in northern Arizona.
They cuddled Christopher, who is one-quarter Navajo, through months of severe anxiety attacks until he was secure in knowing his new Mommy and Daddy, as he grew to call them, would be there for him in a way his birth mother had not been. He was a “good soul,” Kelly says, and after caring for him for six months, they inquired about adoption.
Christopher’s mother publicly gave her blessing to Kelly and Steve to adopt the child. The social worker, however, informed the couple they would “never” get him and “should not have become attached.”
For the next four years, according to court records, the Navajo Nation searched for another family to adopt Christopher. While Steve and Kelly carted the growing boy back and forth to preschool and devised sneaky ways to get him to take his favorite Captain America costume off long enough so they could wash it, the tribe trotted out five different candidates. Some had criminal histories and didn’t pass the background check. Others didn’t want the child. Kelly flinched every time the phone rang, certain the authorities were coming to take Christopher away.
“We were all he had,” Steve says.
The Goldwater Institute argues that overlooking attachment is wrong. “We want these children’s cases to be evaluated under the same standards as other non-Native American children,” Dynar says. “They shouldn’t be punished because of the content of their blood.”
The Indian Child Welfare Act’s supporters acknowledge that it can be traumatic for a child to be torn from a foster parent they’ve grown to love, but contend that it is possible to mitigate.
Foster care, by definition, is temporary, says Sarah Kastelic, executive director of the National Indian Child Welfare Association, a nonprofit that provides legal resources to tribal members. Foster parents should “know what they are signing up for.”
“It’s important not to put too much weight on one moment in time,” she says. “A child who has bonded in a healthy way to one adult has the capacity to bond with additional adults.”
What Dynar dismisses as blood, Kastelic champions as a rich, dwindling culture that warrants protection. Children need to learn about tribal customs and how to speak their forefathers’ language, she says. But culture is more than just food and dress and folk dances; it’s a value set, a paradigm for constructing meaning in life.
Kelly and Steve tried, clumsily, to help Christopher connect with his roots. Kelly obtained some Navajo-language children’s books, hoping to teach him some simple words, such as the names of animals. She stumbled over the pronunciation, though, and soon gave up.
They wanted to take him to see some Navajo dancing, but they couldn’t find any. They took him to events put on by the Yavapai-Apache Nation instead.
Children with a strong sense of culture have fewer substance-abuse problems, lower suicide rates, and better success in school, Washburn says. When they are removed from that, he says he’s observed, many Native American children who have been adopted into Caucasian families “become lost souls.”
“Sometimes, as adults, they get reunited with their birth family or relatives, but it is too late,” he says. “There is a hole in their hearts that can never be filled.”
James’ case was transferred to tribal court in August 2012. Jennifer treated every weekend like it was the last, taking James to the children’s museum, the zoo, and Sesame Street Live.
A few months later, Jennifer learned, the courts had granted custody to James’ aunt and uncle — the same aunt and uncle the state had previously deemed unfit.
She packed up all his favorite toys and typed up a two-page letter to his new family. He needs asthma medication, she wrote tearfully. When he says “Elmo,” that means he wants to watch television. When he’s upset, his favorite blanket will calm him down.
After the caseworker took him away, she and her parents went to the casino and drank all day. The next day she didn’t get out of bed. Life was a fog until March. She had no appetite; she lost 30 pounds.
She watched him grow up on Facebook.
At one point, she saw, he was reunited with his mother.
Jennifer e-mailed her to tell him she had baby photos and James’ medical records: Did anybody want them? His mother replied: Please don’t contact us anymore.
Within months, James was back in the foster-care system, never spending more than a year in each place. His biological parents moved to Mexico without him.
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Jennifer, determined not to give up on him, tracked down his caseworker using her connections at DCS and asked if she could take James back. She was denied.
On James’ fifth birthday this June, she bought a bouquet of Elmo balloons and released them in the park, watching them disappear into the sky one by one, mourning his loss.
“I know he’s out there, but I’m not allowed to contact him,” she says. “I worry all the time: Is he loved? Is he happy? I’m completely helpless. It’s as if he died — but worse.”