PATHWAYS PRACTICE DIGEST A Practical Forum for Services to Indian Children & Families Fall 2016
Inside This Issue Tribal Customary Adoption Special Issue
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CONTENTS
Upcoming Events Making Relatives, Supporting Families Elders Call for Changes in Adoption Practices Community Inventory
National Indian Child Welfare Association | Pathways Practice Digest
Fall 2016 | Page 2
2. 3. 6. 7.
Making Relatives, Supporting Families
How Custom and Tradition Strengthen Tribal Adoption Practices
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he latter half of the 20th century saw increasing calls to define, regulate, and promote “permanency planning” as best practice in U.S. child welfare services. Because research of the 1950s emphasized the harmful psychological effects of long-term foster care placement in children, permanency planning—a philosophy that promotes quickly establishing a permanent living situation in which a child in foster care establishes a lasting, nurturing, and legally secure relationship with at least one adult—found favor with policymakers of the time as well. Advocacy of the period culminated in the passage of the Foster Care and Adoption Assistance Act of 1980. With this law, federal funding became attached to permanency requirements for the first time. Even more restrictive was the Adoption and Safe Families Act of 1998, which created timelines requiring the termination of parental rights (TPR). According to Cross and Fox (2005), these policies prefer permanency options that include TPR and formal conventional adoption. Unsurprisingly, this emphasis on TPR is most at odds with the cultural values and practices of tribal customary adoption in Indigenous communities. In fact, the central tenant of tribal customary adoption includes avoiding TPR whenever possible, in favor of the continued acknowledgement of a child’s tie to his or her biological family (Morrison et al., 2010).
What is Tribal Customary Adoption?
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ecause the process of tribal customary adoption is deeply cultural itself, it serves as an important resource for the children involved. It can ensure that a child will remain connected to family and culture, grounded in identity, both as a biological daughter or son but also as an adopted child.
“Tribal customary adoption” refers to a traditional tribal practice recognized by the community that gives a child a permanent parent-child relationship with someone other than the child’s birth parent (Cross and Fox, 2005). Tribal customary adoption is a long-standing child-rearing practice common to Indigenous cultures worldwide, including the United States, and is important to the well-being of children and stability of Indigenous families and cultures.
Where tribal customary adoption differs from conventional permanency planning is noted by Atwood (2010), who states, “[a]lternative concepts of permanency can be found in many tribal practices that may provide children with a stronger sense of family and belonging than the child would receive through formal adoption” (p. 273). Because the process of tribal customary adoption is deeply cultural itself, it serves as an important resource for the children involved. It can ensure that a child will remain connected to family and culture, grounded in identity, both as a biological daughter or son, but also as an adopted child. For example, Shannon Crossbear describes her family’s experience with tribal customary adoption: The determination was such that [my son and his wife] would “adopt” the boys, raise them, nurture them and protect them…while allowing their mother and father to not terminate parental rights. This allowed for supports to be put in place for the continued care of the children, to address the needs as they arise, and not remove the possibility of reunification if future circumstances for a healthy relationship [could] be forged with the biological parent. Meanwhile, we welcome our expanded family while contributing to the cultural shield that leads to resilience as individuals and as a community (Cross and Fox, 2005, p. 425).
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Cross and Fox (2005) point out that for American Indian and Alaska Native (AI/AN) communities, the concept of belonging—the heart of permanency planning—is central to AI/AN values. In Indigenous cultures (as compared to Western views of children and the nuclear family), children are the community’s responsibility—not the parents’ alone. Because of this, it is of the utmost importance in tribal customary adoption that the child’s connection to his or her biological parents not be severed.
continued, page 4
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We welcome our expanded family while contributing to the cultural
shield that leads to resilience as individuals and as a community.
National Indian Child Welfare Association | Pathways Practice Digest
Shannon Crossbear
Fall 2016 | Page 3
Making Relatives, Supporting Families Cont’d
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n Indigenous cultures (as compared to Additional Resources Western views of children and the nuclear Looking for examples of how tribes have family), children are the community’s codified tribal customary adoption? responsibility—not the parents’ alone. are a few tribal codes that include Because of this, it is of the utmost importance Here customary adoption and informal custodianship provisions. These codes in tribal customary adoption that the child’s be retrieved from the National connection to his or her biological parents not can Indian Law Library, a project of the Native American Rights Fund. See: be severed. www.narf.org/nill/triballaw/index.html
In fact, a 2004 Indian Child Welfare Act study commission in South Dakota heard multiple witnesses challenge the cultural incongruence of TPR: One of the most-asked questions is why extended family and nuclear family rights are terminated when parental rights are terminated…why the grandparents or aunts or uncles of a child also lost rights to see the child after the parental rights were terminated (Melmer, 2004).
Tribal Customary Adoption: Preserving Relationships and Culture Tribal customary adoption practices in Indigenous communities strengthen kinship ties and create, rather than limit, relatives. Furthermore, the practice of tribal customary adoption serves the important function of instilling in children the values, beliefs, and cultural practices of the tribe, thereby preserving cultural identity. Take for example this Ojibwe mother’s description of her son’s adoption experience: Although all birth parental rights have been terminated in the legal sense, in the Indian way, we preserve his connection to his birth family, sending pictures and news to his biological grandmother. We believe there is no “death” to the connection between him and his biological family, therefore we honor it. He is part of a great extended family. I so love that his names represent his story. They give his history a weight and acknowledgment that he is part of something; he is Anishinabe” (Pember, 2009).
Codes not available through this resource are available on the corresponding tribe’s website.
Customary Adoption
Absentee Shawnee of Oklahoma Juvenile Code § 705 Laws of Confederated Salish and Kootenai Tribes, Codified § 3-2-1101 Crow Law and Order Code § 9-5-116 Law and Order Code of the Rosebud Sioux Tribe § 2-2-7 Siletz Tribal Code § 8.002 Spirit Lake Children’s Code § 5-1-101 White Earth Band of Ojibwe Judicial Code, Title 4a
Informal Custodianships
In preserving this relationship and a child’s relationship to culture, community, and tradition, tribal customary adoption not only recognizes a child’s connection to his or her parent but also his or her sense of belonging. Research regarding First Nations’ tribal customary adoption indicates that the practice served “to strengthen, not undermine,” the existing relationships in the child’s life (Carrière, 2010, p. 47).
Crow Law and Order Code § 9-4-115 Pueblo of Laguna Code § 7-1-7 Reno Sparks Indian Colony Tribal Law and Order Code § 6-2-709 Revised Spokane Law & Order Code § 6-4.02
In the context of AI/AN child welfare, permanency planning “has as much to do with maintaining a child’s connection and sense of belonging to the extended family, clan, or tribe as it does with maintaining ties to the biological parent” (Cross and Fox, 2005, p. 427). Tribal customary adoption, more so than any other permanency option, helps children, families, and tribes attain this goal:
If you have a customary adoption provision you would like to share with NICWA, please send your information to our government affairs department via info@nicwa.org.
This is not an exhaustive list, but rather a list of available codes that highlights diverse tribal policy and practice.
continued, page 5
National Indian Child Welfare Association | Pathways Practice Digest
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Making Relatives, Supporting Families Cont’d Customary adoption fits culturally with the extended family concept and it formalizes and protects ongoing care of the child by an extended family member or other recognized potential parents. It eliminates the philosophical barrier to adoption as conducted in mainstream society; namely, the abhorrence of termination of parental rights (Cross and Fox, 2005, p. 247).
In their case study on permanency from the perspective of the Wabanaki, Morrison et al. (2010) identify that permanency for AI/AN children is distinguished by the importance of children being raised within their culture for a sense of belonging, and the capacity of extended family and community networks to provide safety and care for a child that reduces the need for a child’s removal. These values and capacity demonstrate that permanency, within informal child welfare structures, exists in tribal communities, and that traditional practices such as tribal customary adoption represent an important resource for AI/AN children in the child welfare system. In general, research shows that culturally competent programs, or programs that draw on or incorporate tribal traditions, may be better accepted by AI/AN clients (Adams, Lee, & Lipsky, 2010). When the Yellowhead Tribal Services Agency in Alberta was established in 1999, it became the first federally funded Aboriginal child welfare agency in Canada to be recognized by provincial authorities. Yellowhead was also the first to include custom adoptions as a significant component of its service provision (MacDonald et al., 2005). Carrière (2010) reviewed this program and found that the fact that there have been no placement disruptions in Yellowhead’s tribal customary adoption program is “testimony to the strength of Aboriginal family placement” (Carrière, 2010, p. 52). Baldassi (2006) notes that clear results in tribal customary adoption cases (particularly among the Northwest Territories in Canada), are having some impact on mainstream child welfare and adoption practices. Baldassi (2006) found that in the wake of some jurisdictions’ recognition of tribal customary adoption in Canada, common and civil law adoptions now involve more openness (e.g., promoting open adoptions for children to protect a continued relationship, as appropriate, between the birth parent and child). It appears that “the impact customary adoption has had on statutory adoption may have in fact led to the ability of Aboriginal birth parents to enforce post-adoption access outside of the framework of Aboriginal law and custom” (Baldassi, 2006, p. 99).
C
ustomary adoption fits culturally with the extended family concept and it formalizes and protects ongoing care of the child by an extended family member or other recognized potential parents. It eliminates the philosophical barrier to adoption as conducted in mainstream society, [the] termination of parental rights.
Similarly, Polansky (2012) speaks to the increasing incorporation of tribal customary adoption practices by non-Natives in her argument for “combating the legal orphan problem and promoting permanency by looking to Native American tribal customary law” and bypassing TPR (p. 403). It is important, however, to not only recognize tribal customary adoption as a resource, but respect the cultural groundings of this practice. Thus, when considering how to support it or include it in mainstream governmental structures, tribal customary adoption must only be done in a manner that avoids cultural misappropriation and respects tribal sovereignty.
Tribes across the United States have also begun to re-incorporate tribal customary adoptions into their own codes, policies, and practices. These efforts to put cultural beliefs and tradition at the heart of permanency planning have brought better outcomes for children, families, communities, and tribes. They have left intact AI/AN children’s natural support systems, kept children immersed in their culture, and respected the role of customary law that has governed tribal communities since time immemorial. Tribal customary adoption therefore promotes resiliency and the best interests of AI/AN children. continued, page 7 National Indian Child Welfare Association | Pathways Practice Digest
Fall 2016 | Page 5
Wisdom of Elders Leads Tribe to Examine Adoption Practices
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n 1997, the White Earth Band of Ojibwe wished to expand the jurisdiction of its tribal court. Up to that point, the tribal court limited the cases it heard to hunting and fishing disputes. Judge Anita Fineday was brought on board by the tribal council to strengthen the tribal court and expand jurisdiction, with priority placed upon child welfare cases. Fineday and others consulted with White Earth tribal elders about the role of the court system and how the tribal court could help stop the loss of tribal children. The elders were very clear about the role of the tribe and the tribal court when it came to children. “They told us a couple of things,” recalls Fineday. First, “‘you can’t terminate parental rights. We don’t believe in that. That has never been our way. If you do that, the tribal court will not be accepted by the community.’ I realized we needed something other than terminating rights.” Second, elders told Fineday and others that parents should always be able to come back and return to caring for their children when they are able. She explains, “The elders said that it has always been our way for tribal members, if needed, to take in others’ children, but the door is never closed on parents.” Lastly, they explained that the tribal court system must not replicate the state court. It needed to be different—even down to what the judge wore—telling Fineday, “You can never wear a black robe. You cannot look like people that took our kids away before.” Such a strong mandate from elders understandably made a lasting impression on Judge Fineday. She never wore a black robe and was mindful not to adopt the methods or assumptions of the Minnesota state court system. Initially, as the White Earth court looked at adoption practices, including suspension of parental rights, they planned to refrain from putting practices in writing and to allow the customs to simply occur as they had in the past. However, the lack of written tribal codes became a problem. “We thought we would leave the concept of taking in children to custom,” says Fineday. “We were hesitant to put anything in writing. However, I soon realized I was very naïve about the complexity of this area.” There have been barriers along the way. White Earth has worked with several federal agencies, including the Social Security Administration and the Veterans Administration, to be sure that tribal customary adoptions are recognized and that families do not face administrative or legal questions regarding the validity of their custody. Further, the tribe now has agreements with the federal and state governments so that the adoptive parents can access financial subsidies if they are eligible.
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When White Earth first looked at tribal customary adoptions, one guiding goal advised staying true to the customs of the tribe to create a more humane system—to not cause trauma to Native families like the state system did. As Judge Fineday explains, “It is such a fiction to say, ‘We are terminating parental rights.’ Children are the victims of that fiction. The tribal systems can be and must be more humane. One of the most traumatic things for a child is being taken from parents. On top of that is the trauma of telling them they can never have contact with their parents again. We need to move away from a punitive system and look at the holistic system to do best for these children.”
The tribal systems can be and must be more humane. One of the most traumatic things for a child is being taken from parents.
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National Indian Child Welfare Association | Pathways Practice Digest
Anita Fineday
Fall 2016 | Page 6
Quick Community Inventory This quick community inventory has been designed to help tribal leaders, child welfare practitioners, and tribal attorneys start conversations about the use of tribal customary adoption in your community. A complete 34-question community inventory based on a tribal model of strategic planning is included in NICWA’s curriculum Tribal Customary Adoption: Making Relatives, Supporting Families.
1
Is the community happy with current tribal adoption and permanency policy and practice?
2
How do we currently provide permanent homes for children who can no longer safely remain with their parents?
3
After a review of our child welfare code’s permanency sections, do they include culture and tradtional child-rearing practices?
4
Are existing child welfare funding sources adequate to support changes in permanency policy and practice? a) Have we been able to fully identify and explore all external and internal funding resources that could be used to support change?
5
Based on what we know and believe, what is our community’s vision for permanency policy and practice? a) How should children be placed when they can no longer safely remain with their parents? b) Where should children be placed when they can no longer safely remain with their parents? c) Should children’s connection to their parents be legally preserved? Their grandparents? Their aunties, uncles, and cousins?
Making Relatives, Supporting Families Cont’d from page 5 References Adams, A. S., Lee, A. J., & Lipsky, M. (2010). Governmental services and programs: Meeting citizens’ needs. In M. Jorgensen (Ed.), Rebuilding Native Nations (pp. 223–245). Tucson, AZ: University of Arizona Press. Atwood, B. (2010). Children, tribes, and states: Adoption and custody conflicts over American Indian children. Durham, NC: Carolina Academic Press. Baldassi, C. (2006). The legal status of Aboriginal customary adoption across Canada: Comparisons, contracts, and convergences. University of British Columbia Law Review, 39(1), 63–100. Carrière, J. (2010). Aski Awasis children of the earth: First peoples speaking on adoption. Black Point, NC: Fernwood Publishers. Cross, T. L., & Fox, K. (2005). Customary adoption as a resource for American Indian and Alaska Native children. In G. P. Mallon & P. M. Hess (Eds.), Child welfare for the 21st century: A handbook of practices, policies, and programs (pp. 423–431). New York, NY: Columbia University Press. Macdonald, K. (2009). Customary adoption in British Columbia: Recognizing the fundamental differences. APPEAL: Review of Current Law and Law Reform, 14, 17–23. MacDonald, N., Glode, J., & Wien, F. (2005). Respecting Aboriginal families: Pathways to resilience in custom adoption and family group conferencing. In M. Unger (Ed.), Handbook for working with children and youth: Pathways to resilience across cultures and contexts (pp. 357–370). Thousand Oaks, CA: Sage Publications. Melmer, D. (2004, Nov. 3). ICWA hearings turned emotional. Indian Country Today. Retrieved from http://indiancountrytodaymedianetwork.com/2004/11/03/icwa-hearings-turn-emotional-94157. Morrison, C., Fox, K., Cross, T., & Paul, R. (2010). Permanency through Wabanaki eyes: A narrative perspective from “The People Who Live Where the Sun Rises.” Child Welfare, 89(1), 103–123. Pember, M. (2009, March 18). One family’s story. Indian Country Today. Retrieved from http://indiancountrytodaymedianetwork.com/2009/03/16/one-familys-journey-82883. Polasky, P. (2012). Customary adoptions for non-Indian children: Borrowing from tribal traditions to encourage permanency for legal orphans through bypassing termination of parental rights. Law & Inequality, 30(2), 401–425.
National Indian Child Welfare Association | Pathways Practice Digest
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