My Uterus Will Not Be Used To Fill Your Tribal Rolls: I Fought The Indian Child Welfare Act And Won

Having a tribal identity was simply not something I was ever exposed to, and to have my first exposure be, “We’re taking your baby and you can’t do anything about it," was shocking.
Publish date:
July 5, 2013
adoption, legal system, welfare, being a mom, native americans, legal battles

I spent a lot of Wednesday refreshing various news organization sites to watch for the DOMA/Prop 8 rulings (YAY GAY!). What caught my attention though was an article on xoJane about a Native biodad who lost custody of his daughter to a set of white folks and the concern that tribal identity should trump the rights of the presumed adoptive parents. The father had attempted to use the Indian Child Welfare Act to retain custody.

My heart beat fast and I felt like I’d been punched in the gut. I’m sure many Natives felt the same way, but probably not for the same reason.

I’m a Mvskokee Creek Native American woman and I oppose the Indian Child Welfare Act.

Eighteen years ago I gave the most wonderful, amazing, beautiful child up for adoption. I was young and I knew that no matter how much I loved my daughter, caring for her was simply not something I was emotionally or financially able to do at that time. I was raised Catholic and morally, for me, abortion was not an option. That left adoption.

I was very lucky to know a childless couple in my parish who desperately wanted a child and could not have one. It was perfect. My child would be raised close by, in my parish, by people I knew. I could have contact with her and watch her grow up. She would know me and my reasons for my choice and be raised in the Catholic faith, something that was very important to me.

I began having labor pains two-and-a-half weeks before I actually gave birth. I was in a lot of pain, both physically and mentally. It was at this time that I found out about the Indian Child Welfare Act. A well-meaning go-between, following Federal Regulations, contacted the Mvskokee Tribe to inform them of the impending birth and adoption. That’s when my choice as a woman went right out the window.

The ICWA was designed to ensure survival of Native tribes and their culture. I could write a "War and Peace"-length book on the injustices faced by indigenous people but to sum up: For years Native children were removed from their families and placed with white families or in Indian Schools in order to assimilate and seemingly propagate the end of Native Americans. It was like a legal, secret Trail of Tears but it went on much longer and, sadly, unchecked until the ICWA.

I was handed the phone and for the first time in my life, I spoke with my tribe. I was told in no uncertain terms that my daughter would not be going where I chose, that I had no right to choose. They tried to be accommodating, offering to send me lists of Native, Catholic families who they’d be willing to place her with, all of whom were located between 60-70 miles away.

Though the adoption would be open, I wouldn’t be able to see my daughter simply by dropping by my church, or driving across town, which is something that I desperately wanted. As I begged them through tears to allow me my choice I was told, “We don’t want to hurt you, but…”

I’m what you might call a “City NDN.” Half Native, I’ve been removed from tribal culture almost my entire life. Save for the occasional Pow Wow or festival I don’t have a tribal identity, unless you count having a Certification of Degree of Indian Blood card. It was simply not something I was ever exposed to, and to have my first exposure be, “We’re taking your baby and you can’t do anything about it," was shocking.

I say I gave up my daughter 18 years ago, but really it’s only been 13 because of the ICWA. See, I wasn’t just shocked, I was livid. How could a tribe who hadn’t once reached out to me as I grew up to educate me on my heritage claim to want to preserve their culture so badly that they’d disregard my right to choose as a woman to take my child? Why hadn’t they taught me anything in the 21 years I’d been alive, if cultural preservation was so important?

So I fought. I fought for five years of continuances, and motions and threats to move to Tribal Court (where I’d surely lose). I fought for my right to choose where my child grew up.

It was a long, hard battle. I couldn’t very well keep my daughter during that period, but she also couldn’t go with the couple I’d chosen, so on Mother’s Day, 1995, I took her to another family in my parish to foster. I imagine it's hard enough to give up a child, but to give up a child while you’re still uncertain of the outcome is terrifying. I knew if I lost my case I would simply raise her myself. I was filled with so much hurt and anger, I didn’t want the Tribe to have anything to do with her. So for 5 long years, I knew in the back of my head that one day I might have to take my child back.

Giving a child up for adoption has its own grief process. During this time, I was unable to grieve my loss or come to acceptance. I spent years having panic attacks and feeling guilty about not being able to give my daughter the life I wanted for her. My heart ached for her adoptive parents. My heart ached for the bonding time she was missing out on with them. In the months leading up to her birthday every year, I’d be hit with massive, debilitating depression. I ended up being diagnosed with Post Traumatic Stress, an issue I’ve finally, after all this time, come to terms with.

We were very lucky to find a lawyer that specialized in cases involving the ICWA. There’s actually a clause in ICWA that applied to my unique case, a fact we found out about two years in. I was 21, hadn’t signed away my parental rights yet, and had handpicked the family. The Good Cause Clause by rights should have made this adoption easy as the Tribe had no legal leg to stand on, yet they still dragged the case out for another three years.

I showed up to court on the day the case was to be decided. My daughter was there, as were her prospective adoptive parents. The Tribe didn’t even bother to show up. To this day, that phone call and the court case is the only contact I’ve had with my Tribe.

To be fair, I don’t wholesale discount all parts of the ICWA. I believe that when applied correctly and with parental consent it’s an amazing piece of legislation that may go a long way to preserving dying Native culture. But in my case, all it left was a bitter taste in my mouth and years of frustration.

I wonder sometimes about other women this may have happened to, who were made to feel that their right to choose was somehow less than and if they fought or are suffering silently. I hope they know that despite what the law says they matter, their choices matter, and that they find the hope in what feels like a lose/lose situation. That’s what got me through this and what I hang on to every day: Hope.

My daughter recently graduated high school, an event I was able to attend and cheer loudly at because even though I gave her up, I retained the bioparent right to embarrass her. She starts college in the fall, plays eleventy billion instruments better than anyone, and recently took me with her to get her first cartilage piercing.

She understands my choice and my decisions and loves me even though sometimes I accidentally “go mom” on her. She’s the best thing I’ve ever done in my life and despite the pain and struggle, I would do it all again to see her smile as she walked across that stage to accept her diploma.