Letter to CERA
by Francie Smith

CERA,

    I was personally involved with the following situation that left me convinced that the Indian Child Welfare Act often doesn't benefit the children that are affected by it:

    The three Hinsley children were living with their mom when she was diagnosed with cancer. The children were all part-Indians. Mrs. Hinsley had come to realize how destructive the reservation system had been to her and her family. She decided to move off the reservation and among other things had started going to church. She was a single parent who chose not to enroll her children in either the Tribe or the Head Start program because she did not want them to ever be a part of the reservation system where she and her family were raised. She asked her friend to please take care of her children when she died, because she was adamant about not wanting them to go back to the destructive life she had left on the reservation. Before a legal will had been written, the mother died unexpectedly from a heart attack.
    The state court was required by the Indian Child Welfare Act to give the tribe jurisdiction over the children because the children were eligible for tribal enrollment. The mother's plans and wishes for her children were not heeded. Once the tribe had jurisdiction, they didn't seem to concern themselves with the welfare of the children or the wishes of the mother. They immediately took the children out of their school and away from friends and relatives to put them in foster care on the reservation.
    About this time a couple that had already been pursing adoption heard about the children. The Lee's were a childless couple who seemed like a perfect fit for the children because the wife was Indian and the husband was white. They lived in a little community about twenty-five miles from the reservation. They went to tribal court and asked to be allowed to adopt the children. Several hearings were held in tribal court. During this process the lawyer for the tribe confided that they had about one thousand children in foster care status in a tribe of about five thousand. After several hearings, the tribal court inexplicably announced that the legal custody of the children would be given to a brother of Mrs. Hinsley and physical custody of the children would be in a foster care home.
    Although the Lees later successfully adopted, I was very upset and troubled by the process that I had witnessed. Since I believe adoption is generally so much better for children than long term foster care, this situation raised some very troubling questions for me. I wondered if the tribal court decided this issue in the best interests of the children or of the tribe itself? Had the thousand children the tribal lawyer referred to become a source of financial income and power for the tribe and tribal members? Did the ICWA reverse the problems it was designed to correct? Now, instead of unfortunate children being removed from reservations, does federal law essentially force them into foster care on reservations? How many children like the Hinsley children are kept in foster care on reservations around the country?

Sincerely Yours,

Francie Smith