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Nebraska- the Staton abandonment and the Indian Child Welfare Act (ICWA)

This is the latest in a series of posts I have done criticizing Nebraska’s legalized child abandonment laws. You can find my earlier posts via my Nebraska tag.

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Before even starting to write about this topic, keep in mind the disclaimer I’ve placed upon earlier writings I’ve done in relation to First Nations peoples and adoption:

To start from a personal perspective, I’m just a Bastard, a politically active adoptee.

Being legally prohibited from attaining my State sealed records, I have no idea what heritage cultural or genetic my biological family might contain, other than a quick glance in a mirror appears to indicate pretty clearly a hefty chunk of what would generally be termed “white” by sociological definition. The family history of those who adopted me has interwoven at times with First Nations peoples on both the American and Canadian sides of the border.

While my interest in this subject, yes at times does relate to aspects of ‘familial’ history, my primary interest in such is historical and political, speaking from both a Bastard perspective, as one who opposes forms and tactics of colonialism (religious, political, etc), and as one who supports indigenous peoples’ autonomy and demands for redress.

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Ironically, the Indian Child Welfare Act, or ICWA in relation to the dump laws was precisely what I had been intending to blog about, but hadn’t had the time to get to. Well sure enough, in Nebraska, we appear to have the first case(?) of an ICWA claim in the wake of a “safe haven” legalized abandonment.

Channel 6 News found out Wednesday the Cherokee Nation based in Oregon may have a legal claim to raise the Staton kids because they are part Native American.

(Also be sure to see the video related to the piece.)

Why haven’t we had an ICWA dump related claim before now? Perhaps because in most states abandoners are anonymous and the abandoned kids are not old enough to answer questions relating to their genealogy.

(Again, ‘aging down’ will not ’solve’ these problems. Changing Nebraska’s dump law to apply only to infants would only create a new state-created ‘pocket’ in which to hide crucial information such as a child’s genealogical background, information vital to an ICWA claim. Adoptees in closed adoptions, such as myself actually know a great deal about that, as we have no means by which to determine any First Nations ancestry we may or may not have.)

While I have been working on a longer post about the nine kids Gary Staton abandoned back on September 24th, and the aftermath of that abandonment;

  • how the kids have ended up at the heart of legal battles,
  • having to make difficult choices between remaining with their friends at their school, or staying as a family unit with the other kids,
  • how it has played out across multiple states,
  • and how it has played out between family members and Nebraska Health and Human Services,

but for the moment I’m going to set that saga aside to focus solely on the ICWA angle.

Bastard Nation, The Adoptee Rights Organization warned about how the dump laws circumvent ICWA early on, pointing out that such laws:

Contravene sections of the Indian Child Welfare Act (ICWA) which give tribes first custody rights in cases of child relinquishment.

Bastard Nation has brought the issue up many times in testimony trying to stop the dump laws. State after state, in enacting their dump laws have disregarded their obligations under ICWA.

I have also pointed out that dump laws short circuit ICWA claims in my own previous blogging. (While this particular post I’ve linked is primarily relating to Canadian First Nations children, some of whom were later adopted by American couples, it’s an important read as backgrounder and context to the history of how First Nations children have been actively resettled into white families. Dump laws must be understood within the broader context of forcible child removal as a means by which to cut off Tribes’ futures.) Bastardette has also pointed out the ICWA violation in relation to Nebraska’s dump law.

As an aside, Shea Grimm in her search series has also written about ICWA’s pertinence to sealed records adoptees’ attempts to regain access to their own records, see her section Using The Indian Child Welfare Act in a petition. Unfortunately this often ends up in the catch-22 of having to first know about your Native ancestry to to gain the information relating to your Native ancestry. But then, there’s very little about adoption that is logical and straightforward.

The First Nations Orphan Association is an important voice relating to issues of First Nations kids and adoption . Again, bear in mind such adoptions were often done within a context of non-consentuality. Large numbers of Native children were forcibly removed for adoption. ICWA was in part a response to those crimes committed. But now with the baby Moses laws/”Safe Haven” laws/baby dump laws, a new means of bypassing ICWA has been constructed, once again undermining Tribal rights.

The legalized abandonment laws continue that history of permanently removing children from their Tribal or genealogical heritage, far more so for the infant dumps than Nebraska’s older child dumps, as at least these older kids have perhaps some knowledge of their heritage. The dump laws provide an adoption intake path, wherein certainly for infants, questions of Tribal legal claims are never even raised, doing so in flagrant violation of the Indian Child Welfare Act.

Tribes are not just ‘another player’ in the legal tug of war over kids, they are sovereign Nations. Cutting them out of the equation via the legalized abandonment laws is nothing more than once again creating a new way to circumvent their means to protect children’s identities and Tribal futures.

You want a four letter reason why legalized child abandonment laws must be REPEALED? ICWA.

Infant and anonymous dump laws are the bypass on ICWA.

Older child abandonments will only face ICWA challenges when Tribes have the resources and access to information to raise the claims, wrongly placing the burden of raising the claim on Tribes, rather than on the States who have obligations under ICWA.

Tinkering with age limits and other such details of these laws is not going to begin to deal with the fundamental flaws inherent to all dump laws.

Full REPEAL is the only answer.

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