The US Adoption Industry, the Indian Child Welfare Act, and Black American Infants Sent in Intercountry Adoption

The news of the multiple legal challenges to the Indian Child Welfare Act (ICWA) are beginning to percolate through to the consciousness of news reporting outlets. The reasons behind these attacks on the law are also starting to be queried. This report from Fusion.net  explains that these law suits are a backlash against the proposed binding ICWA regulations, noting that “These proposed regulations have angered opponents of the bill, including the lucrative adoption industry.” In other words, the news story points to those involved in adoption as being opposed to not only the idea of binding ICWA regulations but to the Act itself. The news story goes on to comment that “Since the regulations were proposed, multiple lawsuits have been filed around the country challenging ICWA…”

Just how “lucrative” is the adoption industry in the United States? And why would it care about the adoption of American Indian children? The demise of children available to adopt to the United States through intercountry adoption is well-known. These statisticsfrom the United States Bureau of Consular Affairs, Department of State,  demonstrate the dramatic fall that continues in the number of children received by the United States.  And yet, at the same time, there are children sent from the United States for intercountry adoption—with an estimate, given in this article  that “as many as 500 infants, most of whom are black, leave this country through outgoing adoption every year.”

At the same time the US adoption industry is apparently concerned about restrictions on the adoptions of American Indian children to non-Indians, there is relative silence about the numbers of black children leaving the US in intercountry adoption.  Why a strong reaction to the proposed regulations to ICWA and yet seemingly very little about sending black American children in intercountry adoption? 

Children's Bureau Policy Now Recognizes Customary Adoption for Title IV-E Requirements

A great deal of attention has rightfully been focused so far this year on the changes occurring at the federal level on the implementation and interpretation of the Indian Child Welfare Act. There have been new (non-binding) guidelines issues, and for the first time, a proposed binding rule has been put forward. But these are not the only changes happening at the federal level that are note-worthy. Perhaps hidden because of the higher profile of the ICWA-related changes is a very significant change in the policy of the Children's Bureau.

The National Indian Child Welfare Association explains that

"On February 13, 2015, the Children’s Bureau issued a new policy clarifying that tribal use of customary adoption to modify, as oppose to terminate, parental rights will meet Title IV-E Foster Care and Adoption Assistance requirements. Previously, the Children’s Bureau interpreted Title IV-E requirements to mandate that tribes operating the Title IV-E program must have a tribal code provision that terminates parental rights to be in compliance with Title IV-E. Many of the tribes that operate the Title IV-E program use customary adoptions to honor tribal customs and remove the use of nonIndian practices that resulted in the separation of many AI/AN children from their extended families and tribes"

This is an important recognition, in practice, of American Indian views of adoption, which may differ from that of the typical Western "clean-break" approach that demands the complete legal severance of ties between the child and the parent. The federal policy recognition of the place that customary adoption has in the traditions of some American Indian tribes is a significant step in the acknowledgement and respect for these in the legal arena-- and no doubt will have an impact where it matters the most, in the lives of children and families.

The Children's Bureau policy can on the recognition of customary adoption can be found here at number 3.