There are few things in life as traumatic as losing a child. Unfortunately, this is a phenomenon that plagues humanity on a daily basis. Children are lost in many ways. Some die, some are kidnapped. Others are lost through adoption. For some mothers, adoption is an informed decision made on the basis of what the individual believes is right for her child. However, there is also a phenomenon of adoption that occurred during the 1960s and 1970s, in which mothers were more or less coerced in giving up their children for adoption. In many cases, this coercion also occurred without informed consent, where mothers were asked to sign documents without receiving full disclosure regarding the nature of such documents. This occurred disproportionately among Indian children, many of whom were forcibly removed from their parents during the 1960s and 1970s. This resulted in the Indian Child Welfare Act, according to which no individual or entity had the right to remove children from their families without the informed consent of their birth parents.
During 1960s and 1970s, an investigation found that 25 to 35% of Indian children were separated fromt heir families. These children were placed in foster or adoptive homes. Some were also placed in institutions such as boarding schools. In order to justify the practice of removing Indian children from their birth homes, authorities at the time claimed that there was a dramatic rise in unmarried Indian mothers and unwanted children (Jacobs). Although it was claimed that this was practiced with the best interest of the children involved, Indian authorities, in turn, claimed that ethnocentric and middle-class criteria were applied to justify the removal of children from their homes, families, and communities.
The adoption and foster care of Indian children were promoted on the basis of a "color-blind" ideology. According to this ideology, it was claimed that "equal opportunities" would be provided to Indian children who were placed with non-Indian families. Underlying this, however, was an extreme case of racism, where Indian children were believed to be somehow worse off with their families than with white families.
This was not, however, only a case of believing that Indian children were better raised by white families in terms of racial superiority. It was also an attempt to disempower Indian communities by removing their progeny and, by association, their tribal status and power. By removing their children, the state would also effectively remove the claims of Indian tribes to communal land and sovereignty.
During the 1940s and 1950s, adoption also became a way to strengthen the nuclear family ideal. With the change of gender rorles in the 1960s, along with paid work opportunities for women, many unwed mothers from all races made the decision to keep their babies. When abortion was legalized in 1973, fewer babies became available to adoptive couples. This then resulted in a return of focus to Indian families for adoptive children. The colonial policies of the U.S. Government therefore resulted in an increase of stimulating both the demand and supply of Indian children to non-Indian adoptive families. This is why Indian mothers were often convinced or coerced into giving up their children at birth, while others were convinced to give up their older children for adoption into non-Indian families. Social services also often claimed that Indian families were hopelessly alcoholic, further discrediting them as suitable guardians for their children.
The Indian Child Welfare Act (ICWA) was therefore created in an attempt to bring the welfare of these children back under the control of Indian tribes. During the late 1960s, the coercive adoption practices of the government led to the drive among Indian social workers and community activists to fight this phenomenon. The welfare of Indian children was recognized as a crisis for which awareness needed to be raised. It was within ten years that the passage of ICWA was accomplished. This Act represented a victory of Indian self-determination (Jacobs) and had as its aim the termination of practices leading to Indian children disproportionatly being represented in the welfare system of the nation. The Act also recognizes the need to remember what Jacobs terms the "forgotten child" and to recover the lost history of Indian tribes across the nation. It is within this history that tribal pride and self-actualization can occur, without the blind assimilation of valid and beautiful traditions into a cavernous social system regulated by a supremacist nation. In other words, the Act recognizes that the loss of a child under any circumstances is a tragic phenomenon indeed and should be prevented by whatever means possible.
One case representing the above phenomenon is Adoptive Couple v. Baby Girl. The basis of this case is the birth of a child to an Indian father and non-Indian mother. The relationship between the biological parents ended soon after the discovery of the pregnancy. The mother gave the father a choice between paying child support and relinquishing parental rights. The father chose the latter, and the mother made the decision to seek adoption for the baby. The adoptive couple chosen was a non-Indian family from South Carolina.
The couple assisted the mother throughout her pregnancy and the delivery of the baby. They provided both financial and emotional support and also attended the delivery itself. After the adoption, the father received notification that the baby girl was adopted, which he signed without contesting the adoption. During the pregnancy and delivery, the father made no attempt to contact or support the mother.
However, one day after being served with and signing the notification of adoption, the father contacted a lawyer in order to not only stay the adoption procedures, but also to seek custody of the child. The result was that the South Carolina Family Court denied the adoption. Custody was awarded to the father according to the standards of the ICWA. Since no evidence was offered that "serious emotional or physical harm" would come to her by being adopted by her father. This is a requirement by § I9i2(f) of the ICWA. The child was 27 months old at the time of her removal to her father in Oklahoma.
The South Carolina Supreme Court affirmed the removal of the child to the custody of her father on the basis of the fact that she was classified as an Indian child under the ICWA and the father as her biological parent. This was affirmed by Chief Justice Toal. Dissenting Justices Hern and Cittredge, on the other hand, held that the father has completely abandoned his duties and responsibilities as a parent. It was therefore claimed that any statutory placement preference was overcome by this shirking of duties and that the child should be placed with the adoptive couple, who clearly and manifestly wanted and cared for the child. However, the requirement that active efforts be made to retain the unity of the Indian family overrode any claims or custody by the non-Indian parents.
Because the adoptive family could not show that any lasting harm would come to the child from staying with her father, it was affirmed that the child should remain with her biological parent.
The Supreme Court, however, reversed. Justice Alito maintained that the father was not in a position to invoke ICWA provisions, since he neither knew nor ever had custody of the baby girl. He was a parent in none but the most biological sense. To make the decision, the Supreme Court examined the text of § 1912(f). The first requirement was shoing that harm would result from "continuing custody of the child by the parent." The focus was on the term "continued custody, which implied that prior custody was in place which could be sustained or resumed. Since the father in question, however, did not have a prior term of custody, it was found that…