| This article was published in Indian Affairs, Volume 194, Spring/Summer 2024 Journal. By: Kim Mettler Native Country has had a devastating history with adoption. For almost ten years between 1958 and 1967, the Child Welfare League of America contracted with the federal government to operate the Indian Adoption Project, which was described as a program to “stimulate on a nation-wide basis the adoption of homeless American Indian children by Caucasian families.”(1) By 1967, more than five thousand families had been referred by the Project to adoption agencies across the United States.(2) By 1977, the year the Senate Select Committee on Indian Affairs held legislative hearings on the Indian Child Welfare Act (ICWA), the Indian Adoption Project and its successor, the Adoption Resource Exchange of North America, had placed almost 800 Native American children for adoption.(3) |  |
To adequately talk about adoption in Native Country, we must start with the U.S. federal government practice of kidnapping Native children from their families and sending them to boarding schools.(4) The boarding school system was central for U.S. policy to assimilate Native Peoples.(5) While purportedly providing education that was otherwise inaccessible to many Native children, the boarding schools were meant for “breaking family ties… and providing for the child a substitute for their own family by placing them in good homes of whites….”(6) Religious institutions and organizations supported the boarding schools, and were often paid by the U.S. “a certain sum for each pupil” who entered boarding schools operated by them.(7) Children endured forced labor, barely habitable living conditions, and were subject to horrific physical, emotional, sexual and spiritual abuse.(8) Many schools closed because of reports of neglect and abuse,(9) but the underlying assimilative policy lived on in the Indian Adoption Project.
While our experience in Native Country with the adoption industry is an offshoot of U.S. policies towards Native Peoples, it is also reflective of the adoption industry’s roots and modus operandi. In the 1920’s, a woman named Georgia Tann turned adoptions into a lucrative business, promoting eugenic ideology while exploiting poor families and commodifying children.(10) There have been countless stories of deceptive, unethical, and illegal adoption practices. In 1955, the Senate Judiciary Committee held hearings to investigate abusive adoption practices. The Committee received testimony from birth and adoptive parents and adoptees about their experiences, which included allegations of kidnapping, theft, and the sale of babies.(11) Adoption has evolved to become a multi-million-dollar industry, with private adoptions costing between $25,000 and $60,000.(12) Baked into the profitability of this business model is a reliance on the desperation, poverty, ignorance and vulnerability of pregnant women.
In the United States, children may be adopted through a state’s child welfare system (sometimes referred to as public adoption) or through private adoption. Private adoptions include adoptions facilitated by an adoption agency or consultant, as well as those completed with no agency or facilitator and just an attorney. Our discussion here will be limited to private adoptions.
Like public adoptions, private adoptions must comply with ICWA.(13) Like public adoptions, data that measures ICWA compliance is sparse. Unlike public adoptions, which are monitored by the Administration on Children and Families, private and independent adoption facilitators do not have incentives to ensure that ICWA is being applied and are largely unregulated. There is no federal oversight over private adoptions; instead, oversight is left to the states. Although individual states may track demographic and other relevant data, there are no uniform reporting requirements; states may voluntarily report private adoptions through the Adoption and Foster Care Analysis and Reporting System (AFCARS).(14) Without access to this data – if there is any data – it is difficult to know how many Native children have been adopted through this system, where they may be located or why they were placed for adoption to begin with. It is virtually impossible to know what could have been possible to allow the child to remain with their family and community, or the kinds of support that the birth mother could have received to parent her child.
Moreover, the number of available adoptive children does not meet the current demand, particularly given that most families are seeking to adopt babies. Approximately one million families want babies, but there are fewer than 18,000 babies available for adoption.(15) This drives up the price of adoption, making adoption a lucrative business for adoption agencies, consultants, facilitators, and of course, the lawyers.(16) This circumstance makes ripe the opportunity for financial incentives to be used to pressure birth mothers into placing their child for adoption.
State law may address everything from how much aid may be given to birth mothers for expenses, to the period of time allowed to revoke consent to adopt. To facilitate a quick adoption for its client, an agency in Connecticut, which caps payments to birth parents at $1,500, may find a birth mother in Utah, which has no limit on payments.(17) This is one example of how the lack of uniformity in adoption laws and regulations across states promotes adoption shopping.
An investigative report published by Scripps News on YouTube revealed only nine of the states surveyed for the report (Arizona, Texas, Louisiana, Florida, Kansas, Indiana, Oklahoma, Nevada, and Utah) account for 34% of the births, but are 60% of all outgoing adoptions.(18) Those states consistently recorded more children leaving the state via adoption than coming in and were deemed to be “adoption friendly” for having, among other things, limited waiting periods for maternal consent to adopt after birth, irrevocable consent, and allowing non-residents to finalize adoption.(19) It is not particularly surprising that of those nine states, only three have adopted state ICWA protections.(20) It is not surprising that of these nine states, Texas, Indiana and Louisiana were among the original plaintiffs in the Brackeen
case.(21)
Often birth mothers choose adoption not because they do not want to be a parent, but because they do not have the resources to do so and may be scared and desperate. A 2016 study from the Donaldson Adoption Institute found that 95% of birth mothers who placed their babies for adoption said that they would have kept their baby if they had been given resources and support.(22) That’s heartbreaking. While statistics specific to Native women were not accessible at the time of this publication, we do know that one in four Native women live in poverty, the highest rate among both genders of any racial or ethnic groups.(23) Native women suffer far greater rates of sexual and domestic violence than any other ethnicity(24) and are reflected in the current statistics for high rates of suicide, mental illness, and substance abuse available for all of Native Country. Given universal Native cultural values for the regard for children, it is not unreasonable to conclude that Native women are among those who would choose to parent if they were resourced and supported.
We know that Native children are disproportionately separated from their families, cultures and Nations in public systems that are monitored and have mechanisms in place that give some awareness of what is happening with Native children. But what is happening in the adoption system that operates in the shadows? How can we protect Native women, children and the future of Native Nations against the worst of the adoption industry?
First, the private adoption industry should be investigated, with findings widely published to assist prospective birth mothers and adoptive parents in being informed when making these life changing decisions. Second, we must advocate for stringent regulation at the federal level, which includes de-incentivizing adoption for financial gain and coercing mothers into placing their children for adoption, ensuring compliance with ICWA and standardizing ethical professional practices.
Third, we should advocate for adoptions to be ethical. The Association on American Indian Affairs neither promotes nor opposes adoption and recognizes that it is a legitimate family planning option, and one that is deeply personal and cultural. If a birth mother chooses adoption, it should be at least safe and ethical; and to be in line with federal law, adoptions of Native children should include maintaining the child’s connection with their Native Nation.
Safe and ethical adoption means:
We know many birth mothers would choose to parent if they were adequately resourced and supported. Birth mothers might need assistance in achieving housing, financial and food security; accessing affordable health, mental and behavioral health care; accessing affordable childcare and early childhood education; and help planning and resourcing education and career goals. Assisting birth mothers in accessing these things creates an opportunity for Native Nations, agencies, non-profits, and advocates to work together in identifying and implementing strategies to ensure these needs are met.
The primary challenge in addressing this (and virtually all these issues) is funding. Native Nation leaders and proponents of family preservation, ethical adoption, and family wellness could all work together to advocate for adequate and equitable funding to ensure Native Nations’ programs, Tribal Temporary Assistance for Needy Families (TANF), Indian Health Services (IHS), and other agencies and organizations are able to serve all who are in need of these services and resources. Ensuring that basic needs are being met supports birth mothers in exercising their own self-determination when contemplating parenthood. The ability to self-determine will reduce the financial lure of private adoption.
We won an important court decision last year with Brackeen, but we aren’t done fighting to keep our children—the literal future of our Nations—protected and connected. Birth mothers must be supported in making informed decisions and receive the help they need to safely parent if they choose. But states, agencies and people need to be held accountable for ICWA compliance in all adoptions, public and private. The loopholes that allow attorneys and others to profit off mothers and their babies must be closed, and ethical adoptions – or customary adoption where parental rights are not terminated – must be made the norm. Keeping mothers, children and ICWA in the forefront is an important step to healing our Nations and taking #EverythingBack
Sources:
1 Balcom, K. (2007). The logic of exchange: The Child Welfare League of America, the Adoption Resource Exchange Movement and the Indian Adoption Project, 1958–1967. Adoption & Culture, 1(1), at 5.
2 Ibid.
3 Ibid.
4Newland, Bryan. Assistant Secretary, Indian Affairs. Federal Indian Boarding School Initiative Investigative Report (2022) at 36-37. https://www.bia.gov/sites/default/files/dup/inline-files/bsi_investigative_report_may_2022_508.pdf. Accessed May 5, 2024.
5 Ibid.
6 Ibid.
7 Ibid at 43-48
8 Kids Matter, Inc. Indian Boarding Schools and the History of ICWA. https://www.kidsmatterinc.org/legal-help/native-american-children/boarding-schools-and-the-history-of-icwa. Accessed on May 1, 2024.
9 Carillo, Sequoia and Herrera, Allison. Federal Indian Boarding schools still exist, but what’s inside may be surprising. June 6, 2023. https://www.npr.org/2023/06/06/1155723922/federal-indian-boarding-schoolsstillexist#:~:text=In%20the%20mid%2D20th%20century,Four%20are%20still%20open%20today. Accessed May 1, 2024.
10 Hsiao, Anna. Perspectives on Black Markets. Volume 4, The Black Market Behind Adoption in America. https://iu.pressbooks.pub/perspectives4/chapter/the-black-market-behind-adoption-in-modern-america. Accessed April 25, 2024.
11 Hogan, Maureen. Why the Federal Government Must Regulate Adoption. Adopt American Advocates. https://www.americanadoptioncongress.org/federal_regulate_adoption.php. Accessed April 17, 2024.
12 Braverman, Beth. U.S. News: The Cost of Adoption and Strategies to Pay for It. August 11, 2022. https://money.usnews.com/money/personal-finance/family-finance/articles/what-adoption-costs-and-strategies-to-pay-for-it. Accessed April 17, 2024.
13 The Indian Child Welfare Act applies when an Indian child as defined by the law is the subject of a child custody proceeding, which includes custody proceedings, foster care placement, termination of parental rights, preadoptive placement, and adoptive placement. An adoptive placement means the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption. See 25 U.S.C. §1903.
14 Children’s Bureau, U.S. Department of Health & Human Services, Adoption and Foster Care Analysis and Reporting System, May 30, 2023. https://www.acf.hhs.gov/cb/data-research/adoption-fostercare. Accessed on June 11, 2024.
15 Scripps News/Newsy. How The Private Adoption Industry Reaps Profits and Causes Problems. YouTube, June 3, 2021. https://youtu.be/ijqNpSqswtM?si=fy3E-OLNYf1rsnNk. Accessed April 5, 2024.
16 Ibid.
17 Ibid.
18 Ibid.
19 Ibid.
20 Tiano, Sara. Tracking Efforts to Pass State-Level ICWA Laws. July 10, 2023. https://imprintnews.org/youth-services-insider/tracking-efforts-to-pass-state-level-icwa-laws/241211. Accessed May 2, 2024.
21 Haaland v. Brackeen, 599 U.S. ____ (2023). Known as “the Brackeen case,” this lawsuit was brought by adoptive parents and the state of Texas challenged the constitutionality of the Indian Child Welfare Act. The case began in 2018 and wound its way to the U.S. Supreme Court, which, in 2023, upheld ICWA. You can review the case at https://narf.org/cases/brackeenbernhardt/#:~:text=Brackeen%20is%20the%20lawsuit%20brought,%2C%20Fifth%20Circuit%20en%20banc. Accessed May 2, 2024.
22 Showy, Ben. Exposing the For-Profit Adoption Industry. November 25, 2022. https://shepherdexpress.com/news/features/exposing-the-for-profit-adoption-industry. Accessed on April 23, 2022.
23 Bleiweis, Robin; Boesch; Cawthorne-Gaines, Alexandra. The Basic Facts About Women In Poverty. August 3, 2020. https://www.americanprogress.org/article/basic-facts-women-poverty. Accessed on April 23, 2024.
24 Native American Women’s Firsts in Psychology. https://www.apa.org/pi/oema/resources/ethnicity-health/native-american/women-firsts. Accessed April 23, 2024.
While our experience in Native Country with the adoption industry is an offshoot of U.S. policies towards Native Peoples, it is also reflective of the adoption industry’s roots and modus operandi. In the 1920’s, a woman named Georgia Tann turned adoptions into a lucrative business, promoting eugenic ideology while exploiting poor families and commodifying children.(10) There have been countless stories of deceptive, unethical, and illegal adoption practices. In 1955, the Senate Judiciary Committee held hearings to investigate abusive adoption practices. The Committee received testimony from birth and adoptive parents and adoptees about their experiences, which included allegations of kidnapping, theft, and the sale of babies.(11) Adoption has evolved to become a multi-million-dollar industry, with private adoptions costing between $25,000 and $60,000.(12) Baked into the profitability of this business model is a reliance on the desperation, poverty, ignorance and vulnerability of pregnant women.
In the United States, children may be adopted through a state’s child welfare system (sometimes referred to as public adoption) or through private adoption. Private adoptions include adoptions facilitated by an adoption agency or consultant, as well as those completed with no agency or facilitator and just an attorney. Our discussion here will be limited to private adoptions.
Like public adoptions, private adoptions must comply with ICWA.(13) Like public adoptions, data that measures ICWA compliance is sparse. Unlike public adoptions, which are monitored by the Administration on Children and Families, private and independent adoption facilitators do not have incentives to ensure that ICWA is being applied and are largely unregulated. There is no federal oversight over private adoptions; instead, oversight is left to the states. Although individual states may track demographic and other relevant data, there are no uniform reporting requirements; states may voluntarily report private adoptions through the Adoption and Foster Care Analysis and Reporting System (AFCARS).(14) Without access to this data – if there is any data – it is difficult to know how many Native children have been adopted through this system, where they may be located or why they were placed for adoption to begin with. It is virtually impossible to know what could have been possible to allow the child to remain with their family and community, or the kinds of support that the birth mother could have received to parent her child.
Moreover, the number of available adoptive children does not meet the current demand, particularly given that most families are seeking to adopt babies. Approximately one million families want babies, but there are fewer than 18,000 babies available for adoption.(15) This drives up the price of adoption, making adoption a lucrative business for adoption agencies, consultants, facilitators, and of course, the lawyers.(16) This circumstance makes ripe the opportunity for financial incentives to be used to pressure birth mothers into placing their child for adoption.
State law may address everything from how much aid may be given to birth mothers for expenses, to the period of time allowed to revoke consent to adopt. To facilitate a quick adoption for its client, an agency in Connecticut, which caps payments to birth parents at $1,500, may find a birth mother in Utah, which has no limit on payments.(17) This is one example of how the lack of uniformity in adoption laws and regulations across states promotes adoption shopping.
An investigative report published by Scripps News on YouTube revealed only nine of the states surveyed for the report (Arizona, Texas, Louisiana, Florida, Kansas, Indiana, Oklahoma, Nevada, and Utah) account for 34% of the births, but are 60% of all outgoing adoptions.(18) Those states consistently recorded more children leaving the state via adoption than coming in and were deemed to be “adoption friendly” for having, among other things, limited waiting periods for maternal consent to adopt after birth, irrevocable consent, and allowing non-residents to finalize adoption.(19) It is not particularly surprising that of those nine states, only three have adopted state ICWA protections.(20) It is not surprising that of these nine states, Texas, Indiana and Louisiana were among the original plaintiffs in the Brackeen
case.(21)
Often birth mothers choose adoption not because they do not want to be a parent, but because they do not have the resources to do so and may be scared and desperate. A 2016 study from the Donaldson Adoption Institute found that 95% of birth mothers who placed their babies for adoption said that they would have kept their baby if they had been given resources and support.(22) That’s heartbreaking. While statistics specific to Native women were not accessible at the time of this publication, we do know that one in four Native women live in poverty, the highest rate among both genders of any racial or ethnic groups.(23) Native women suffer far greater rates of sexual and domestic violence than any other ethnicity(24) and are reflected in the current statistics for high rates of suicide, mental illness, and substance abuse available for all of Native Country. Given universal Native cultural values for the regard for children, it is not unreasonable to conclude that Native women are among those who would choose to parent if they were resourced and supported.
We know that Native children are disproportionately separated from their families, cultures and Nations in public systems that are monitored and have mechanisms in place that give some awareness of what is happening with Native children. But what is happening in the adoption system that operates in the shadows? How can we protect Native women, children and the future of Native Nations against the worst of the adoption industry?
First, the private adoption industry should be investigated, with findings widely published to assist prospective birth mothers and adoptive parents in being informed when making these life changing decisions. Second, we must advocate for stringent regulation at the federal level, which includes de-incentivizing adoption for financial gain and coercing mothers into placing their children for adoption, ensuring compliance with ICWA and standardizing ethical professional practices.
Third, we should advocate for adoptions to be ethical. The Association on American Indian Affairs neither promotes nor opposes adoption and recognizes that it is a legitimate family planning option, and one that is deeply personal and cultural. If a birth mother chooses adoption, it should be at least safe and ethical; and to be in line with federal law, adoptions of Native children should include maintaining the child’s connection with their Native Nation.
Safe and ethical adoption means:
- The adoption is legal—it complies with all applicable state and federal laws, including the Indian Child Welfare Act. The adoption agency and any attorneys involved should be licensed by a regulatory body that provides oversight and accountability to ensure actions are legal and ethical.
- The adoption is transparent, information is readily available, is factual and impartial, and is not withheld from birth parents. This includes information about birth parent rights, the responsibilities of the adoption agency (and/or consultant, broker, or facilitator); the adoption process and timeline (including all fees and expenses), and the consequences of choosing adoption.
- The best interests of mother and child must be paramount and include all relevant factors such as the child’s connection and contact with their Native Nation, as well as other ethnic backgrounds and cultural considerations.
- Adoption must be accessible for all types of parents. Gender, ethnicity, marital status, sexual orientation, religion, or disability should not render potential adoptive parents ineligible or unfit.
- The adoption is chosen with informed consent. The birth mother can make her decision after being provided factual, impartial information about her rights, the rights of the adoptive parents, and information about the adoption agency, and after having the opportunity to consult with a lawyer of her choice.
- The adoption decision is free of force and/or coercion. The birth mother should be able to choose adoption freely, after considering all information and factors, and is not forced or coerced into choosing adoption by anyone, including the birth father, family, adoptive parents, the adoption agency or anyone acting on their behalf.
- Customary adoption is an option and used by many Native Nations. Like guardianships, customary adoption provides a permanent home for the child while not requiring the termination of the birth parents’ rights and cutting off extended family relationships. Customary adoptions are based on the Native Nation’s culture and traditions about the transfer of a child from one family to another and are conducted by the Native Nation.
- If we are to cast a safety net for Native children, an important part of the effort should include sex education and access to birth control. Supporting reproductive health education is important for a number of reasons, but giving accurate, accessible information will empower people (especially young people) in exercising their self-determination. And of course, preventing unwanted pregnancy will reduce the need for adoption.
We know many birth mothers would choose to parent if they were adequately resourced and supported. Birth mothers might need assistance in achieving housing, financial and food security; accessing affordable health, mental and behavioral health care; accessing affordable childcare and early childhood education; and help planning and resourcing education and career goals. Assisting birth mothers in accessing these things creates an opportunity for Native Nations, agencies, non-profits, and advocates to work together in identifying and implementing strategies to ensure these needs are met.
The primary challenge in addressing this (and virtually all these issues) is funding. Native Nation leaders and proponents of family preservation, ethical adoption, and family wellness could all work together to advocate for adequate and equitable funding to ensure Native Nations’ programs, Tribal Temporary Assistance for Needy Families (TANF), Indian Health Services (IHS), and other agencies and organizations are able to serve all who are in need of these services and resources. Ensuring that basic needs are being met supports birth mothers in exercising their own self-determination when contemplating parenthood. The ability to self-determine will reduce the financial lure of private adoption.
We won an important court decision last year with Brackeen, but we aren’t done fighting to keep our children—the literal future of our Nations—protected and connected. Birth mothers must be supported in making informed decisions and receive the help they need to safely parent if they choose. But states, agencies and people need to be held accountable for ICWA compliance in all adoptions, public and private. The loopholes that allow attorneys and others to profit off mothers and their babies must be closed, and ethical adoptions – or customary adoption where parental rights are not terminated – must be made the norm. Keeping mothers, children and ICWA in the forefront is an important step to healing our Nations and taking #EverythingBack
Sources:
1 Balcom, K. (2007). The logic of exchange: The Child Welfare League of America, the Adoption Resource Exchange Movement and the Indian Adoption Project, 1958–1967. Adoption & Culture, 1(1), at 5.
2 Ibid.
3 Ibid.
4Newland, Bryan. Assistant Secretary, Indian Affairs. Federal Indian Boarding School Initiative Investigative Report (2022) at 36-37. https://www.bia.gov/sites/default/files/dup/inline-files/bsi_investigative_report_may_2022_508.pdf. Accessed May 5, 2024.
5 Ibid.
6 Ibid.
7 Ibid at 43-48
8 Kids Matter, Inc. Indian Boarding Schools and the History of ICWA. https://www.kidsmatterinc.org/legal-help/native-american-children/boarding-schools-and-the-history-of-icwa. Accessed on May 1, 2024.
9 Carillo, Sequoia and Herrera, Allison. Federal Indian Boarding schools still exist, but what’s inside may be surprising. June 6, 2023. https://www.npr.org/2023/06/06/1155723922/federal-indian-boarding-schoolsstillexist#:~:text=In%20the%20mid%2D20th%20century,Four%20are%20still%20open%20today. Accessed May 1, 2024.
10 Hsiao, Anna. Perspectives on Black Markets. Volume 4, The Black Market Behind Adoption in America. https://iu.pressbooks.pub/perspectives4/chapter/the-black-market-behind-adoption-in-modern-america. Accessed April 25, 2024.
11 Hogan, Maureen. Why the Federal Government Must Regulate Adoption. Adopt American Advocates. https://www.americanadoptioncongress.org/federal_regulate_adoption.php. Accessed April 17, 2024.
12 Braverman, Beth. U.S. News: The Cost of Adoption and Strategies to Pay for It. August 11, 2022. https://money.usnews.com/money/personal-finance/family-finance/articles/what-adoption-costs-and-strategies-to-pay-for-it. Accessed April 17, 2024.
13 The Indian Child Welfare Act applies when an Indian child as defined by the law is the subject of a child custody proceeding, which includes custody proceedings, foster care placement, termination of parental rights, preadoptive placement, and adoptive placement. An adoptive placement means the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption. See 25 U.S.C. §1903.
14 Children’s Bureau, U.S. Department of Health & Human Services, Adoption and Foster Care Analysis and Reporting System, May 30, 2023. https://www.acf.hhs.gov/cb/data-research/adoption-fostercare. Accessed on June 11, 2024.
15 Scripps News/Newsy. How The Private Adoption Industry Reaps Profits and Causes Problems. YouTube, June 3, 2021. https://youtu.be/ijqNpSqswtM?si=fy3E-OLNYf1rsnNk. Accessed April 5, 2024.
16 Ibid.
17 Ibid.
18 Ibid.
19 Ibid.
20 Tiano, Sara. Tracking Efforts to Pass State-Level ICWA Laws. July 10, 2023. https://imprintnews.org/youth-services-insider/tracking-efforts-to-pass-state-level-icwa-laws/241211. Accessed May 2, 2024.
21 Haaland v. Brackeen, 599 U.S. ____ (2023). Known as “the Brackeen case,” this lawsuit was brought by adoptive parents and the state of Texas challenged the constitutionality of the Indian Child Welfare Act. The case began in 2018 and wound its way to the U.S. Supreme Court, which, in 2023, upheld ICWA. You can review the case at https://narf.org/cases/brackeenbernhardt/#:~:text=Brackeen%20is%20the%20lawsuit%20brought,%2C%20Fifth%20Circuit%20en%20banc. Accessed May 2, 2024.
22 Showy, Ben. Exposing the For-Profit Adoption Industry. November 25, 2022. https://shepherdexpress.com/news/features/exposing-the-for-profit-adoption-industry. Accessed on April 23, 2022.
23 Bleiweis, Robin; Boesch; Cawthorne-Gaines, Alexandra. The Basic Facts About Women In Poverty. August 3, 2020. https://www.americanprogress.org/article/basic-facts-women-poverty. Accessed on April 23, 2024.
24 Native American Women’s Firsts in Psychology. https://www.apa.org/pi/oema/resources/ethnicity-health/native-american/women-firsts. Accessed April 23, 2024.
