The New York Times recently asked a group of experts to comment on the Indian Child Welfare Act (ICWA) that the Supreme Court will be reviewing this session. In early January 2013, Court agreed to review a South Carolina court’s decision to return custody of a 27-month old child to her biological father who was an enrolled member of the Cherokee tribe. They made this decision with a “heavy heart” because the child had lived with her adoptive non-Indian parents since birth. In addition, the birthfather had terminated his parental rights. The South Carolina court ruled that the Indian Child Welfare Act (ICWA) mandated that they return the child to the biological father.
The New York Times headlined the topic as “Adoptive Parents v. Tribal Rights“, but Syracuse University Law Professor and member of the Seminole Nation of Oklahoma, Kevin Noble Maillard reframed the question and proposed a solution he calls “splitting the baby” but is also known as open adoption.
Significantly, the last time the U.S. Supreme Court issued a ruling on ICWA was in 1989 in Band of Choctow Indians v. Holyfield, when the Court ruled that the Mississippi Band of Choctaw Indians had jurisdiction over a voluntary adoption made off the reservation by Indian parents to a non-Indian adoptive family. Ultimately, the tribal court decided to leave the children (twins) with the adoptive family, but mandated that they stay in touch with their tribe and birth families (essentially an open adoption).
As Mr. Maillard notes adoption cases need to focus on the best interests of the child. He states that it is not in the best interest of any child for a court to mandate their removal from a happy, stable home. Nevertheless, the child’s Indian heritage is important to both the child, the Indian tribe, and to the adoptive and birth parents.
In fact, one of the joys of open adoption is that there is no need to “split the baby.” The child knows their racial, ethnic, and cultural heritage and keeps ties to their birth family (at the Independent Adoption Center the most common open adoption agreement is one visit a year between birth and adoptive families with phone calls and email in between). The birth family knows their child is happy and well cared for. Finally, the adoptive family feels entitled to parent the child and can provide answers for their child’s questions about their cultural and ethnic background.
Most importantly, is this sort of “open” arrangement in the best interests of the child? According to significant longitudinal research, the answer is yes. The empirical evidence shows that open adoption has the best outcomes for adoptees. The research shows that adoptees in open adoptions report fewer externalizing behaviors, have better ratings of psychosocial adjustment, and believe that the contact had a positive impact, and helps with their identity formation. Furthermore, adoptees in open adoptions do not show any surprise, anger, or confusion about who their parents are.
ICWA is an important piece of legislation, but there are clearly cases where it is in the best interest of the child for non-Indian adoptive parents to raise the child. Open adoption bridges the gap between ICWA and the best interests of the child. The child would remain connected to their birth and tribal heritage, and this should be done though a legally enforceable contact agreement with the birthparents and/or the tribe. This is best for the child without sacrificing the intent of ICWA.
Ann Wrixon, MSW, MBA, is the Executive Director of the Independent Adoption Center, the largest and oldest fully open adoption agency in the United States.