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NICWA's Terry Cross: Misdirected Blame

PORTLAND, Ore., April 5, 2013 /PRNewswire-USNewswire/ -- Terry Cross, executive director of the National Indian Child Welfare Association, released the following op-ed.

"We were told she wasn't an Indian child and didn't think it would matter."                         â€”Melanie Capobianco, Fox News, January 11, 2012

The Indian Child Welfare Act of 1978 (ICWA) is days away from the strongest challenge it has faced in its 35-year history. As the case Adoptive Couple v. Baby Girl has progressed through the lower courts, the law has been decried as an out-of-date, race-based law. Most recently, ICWA was likened to "a bludgeon to destroy existing families."

Such hyperbole serves as effective fodder for debate, deflecting attention far away from a more pertinent question. Why have those who provided legal advice to the Capobiancos in their failed attempt to adopt "Baby Girl" escaped public scrutiny for their mishandling of this case?

From nearly 40 years in the field of Indian child welfare, I have worked with a broad cross-section of adoption attorneys. And while there are still significant strides to be made to enforce compliance with ICWA's now 35-year-old requirements, it is nearly universally known in good adoption practice that Indian children who are being adopted out require additional measures to be taken before an adoption can be finalized.

Good adoption practice requires early identification of Native children and parents in adoption proceedings to ensure compliance with federal and state laws. Records show that Baby Girl's mother knew of her father, Dusten Brown's, Cherokee heritage, and communicated this to attorneys. In turn, the adoption agency determined that because of Brown's Cherokee Nation citizenship, "naming him would be detrimental to the adoption." 

Perhaps inexplicably, the paperwork legally required to notify the Cherokee Nation of the adoption proceedings was so rife with errors (Brown's name was misspelled, an incorrect birthdate for him provided, and Baby Girl's race marked unclearly) that these errors alone caused delays in the tribe's involvement in accordance with ICWA. The Cherokee Nation has said in no uncertain terms that if this basic information had been submitted correctly, they would have immediately intervened.

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