Law

ot all custody battles involve

over a nine-month-old girl named Allyssa is a classic clash of cultures. The mother. Patricia Keetso. 21. is an unwed Navajo Indian who would like her daughter to be adopted by Rick and Cheryl Pitts of San Jose, who have been caring for the baby since birth. But tribal officials, fearing that the flow of Indian foster children to non-Indian homes threatens their survival as a people, are seeking to rear the baby on their Arizona reservation The emotional case has become a symbol of tribal resistance to the baby drain.

Keetso and the Pittses were brought together through San Jose lawyers who arrange adoptions. She lived at the couple's home for three months before giving birth last July. But in April. Navajo offiIcials, who refer to the child as Baby K.. convinced a California judge that any decision about custody should rest with the tribal courts. At a hearing last week, a tribal judge in Tuba City returned Allyssa temporarily to the Pittses, but a final decision is still pending

64

The case has produced its share of wild scenes, charges and countercharges. At a Phoenix airport two weeks ago, a hysterical Cheryl Pitts chased after Navajo social workers who she claims seized the child and spirited her away to the reservation. Keetso and the Pittses charge that Navajo officials violated an understanding that Allyssa would be placed solely in the care of her maternal grandmother until the hearing Instead, they say, the child was left in the home of a stranger, where she was neglected and quickly fell ill Tribal authorities deny that such an understanding existed and contend that the baby's illness was due to a change of formula.

The battle over Allyssa is in part a Jegacy of the 1978 Indian Child Welfare Act, a federal law that has been invoked in thousands of custody disputes. It empowers tribal courts to make custody and foster-care decisions in most cases involving American Indian children. A large proportion of such youngsters are in the care of adoptive or foster parents, a situation that results partly from a high incidence of teenage pregnancy, parental alcoholism and out-of-wedlock births on the impoverished reservations. Before the 1978 law, it was common for state courts and child-welfare agencies to place Indian children with foster and adoptive parents who were not Native Americans.

The outflow led some tribes to fear for their cultural survival Studies conducted in 1969 and 1974 found that between 25% and 35% of American Indian children were placed in institutions or in adoptive or foster care. mostly in non-Indian households. It was not unheard of for social workers to take children away from their parents "simply because their homes had no indoor plumbing." says David Getches, an expert on Indian law at the

University of Colorado. Because it has discouraged such abuses and kept more Indian families together. says Getches. the legislation is a "success story."

But an imperfect one, say some Indians. State courts can retain decision-making power in custody cases by invoking a "good cause" provision-for instance, if there is reason to believe the child might be neglected or abused on the reservation. That provision is interpreted too freely, says Attorney Jacqueline Agtuca, an Indian advocate at the Legal Assistance Foundation in Chicago.

On the other side, non-Indian critics of the law charge that it permits tribal courts to remove Indian children from foster homes where they have lived happily for years. They complain that it allows tribes to lay claim to children who have never lived on a reservation, simply because one of their parents is part Indian.

Ironically, the would-be adoptive father of Baby K. is one-quarter Indian, of the Tarascan tribe of Mexico. He claims that he would see to it that Allyssa is not entirely deprived of her heritage. But for Rick Pitts, when he imagines the child growing up on the reservation. the images of poverty blot out the virtues of cultural identity. "Look at the houses. look at the shacks," he says. "Most likely she'd grow up. get disgusted, leave and never come back." Last week Allyssa awaited her fate wearing a layer of sweet powder. A Navajo medicine man had covered her with it during a ceremony performed to expel evil spirits. Perhaps it will protect her from the injuries of a bitter custody fight. -By Richard Lacayo. Reported by Scott Brown/Tuba City and Elizabeth Taylor/Chicago

89-069 088 - 8

isco Chronicle

Thursday, April 21, 1988

From a

By Michael McCabe

Chronicis Staff Writer

The anguish and confusion surrounding the custody case of a Navajo baby was born out of a controversial 1978 law aimed at halting the breakup of Indian families.

After thousands of Native American children were taken from their families and placed in foster care or put up for adoption, Congress passed the Indian Child Welfare Act, which allows tribal courts to decide custody cases in. volving Indian children.

"All kinds of Indian children were being placed in foster homes or adopted because their parents' rights were being terminated," said Rick Dauphinais, deputy director of the Native American Rights Fund in Boulder, Colo. "They were being taken to places like Los Angeles and Seattle, and Congress said we need to get them back to the tribe, if possible."

Adoption Statistics

According to a House committee report leading up to passage of the Indian Child Welfare Act, in 1974 up to 35 percent of all Indian children were separated from their families and put in foster homes, adoptive homes or other institu tions.

In some states, such as Minneso ta, 90 percent of adopted Indian children in 1978 ended up with parents of other races, according to a congressional report.

"The law was in response to a horrible situation," said Stephen Pevar, an American Civil Liberties Union lawyer in Denver and author of the book, "The Rights of Indians and Tribes."

"Congress held months of hear ings and found that thousands, if

"Sometimes that is true, but if that is the standard, then the government can remove every ghetto child in the United States and put that child elsewhere," said Pevar, who teaches Indian law at the Uni

versity of Denver Law School. "The standard has never been where the child will get the best care, but rath er whether the child's health and welfare is being threatened by stay. ing on the reservation."

Many who testified before Congress in support of the Indian Child Welfare Act cited case after case in which Indian child-rearing practic es were often misinterpreted.

What is labeled "permissive ness," for example, may often in fact simply be a culturally different but effective way of disciplining children, said William Byler, in the book, "The Destruction of Ameri can Indian Families."

"Ironically, tribes that were forced onto reservations at gunpoint and prohibited from leaving without a permit are now being told that they live in a place unfit for raising their children,” Byler said.

Behind the Adoptions

Why are so many Indian children put up for adoption?

Many young Indian women — and men- do not want their chil dren raised in a poverty-stricken en

vironment that all too often is dictive of fallure," said Willam Pierce, executive director of the Na tional Committee for Adoption, nonprofit education and research group based in Washington, D.C.

Since the law was passed, Indian tribal leaders have increasingly resisted allowing children-part of the tribe's extended family to be adopted.

Under the law, the general crt. teria is not where the child was born, but whether the mother or the father has lived on a reservation.

Law's Crities

Not surprisingly, the 1978 law has many critics, including Pierce of the National Committee for Adoption.

"It is a terrible disaster," Pierce said yesterday. "This is the kind of thing that could destroy all transracial adoptions if you have this precedent that the child belongs to the minority group.

"The reason this whole issue is so damned sensitive is that there's this tremendous empathy for the plight of the Native Americans in our society. It's very unappealing for anybody to be on the other side

you know, First we steal their land, now we steal their kids.'"

Allyn Stone contributed to this

Report

By Chuck Hawley

The Arizona Republic

A cultural gulf divides Indians and their Anglo neighbors like the still spaces between stone pillars in Monument Valley.

Within that gulf are thousands of children who have been born into one culture and thrust into a second, only to be pulled upon by forces from both.

Babies born to American Indian mothers have been removed from their families at a higher rate-25 to 35 percent-than any other group.

Of those babies, 85 percent were adopted by non-Indian families, according to information compiled by the Indian Justice Center in Petaluma, Calif., in 1985.

It was such testimony before congressional subcommittees that led to passage of the Indian Child Welfare Act of 1978, which gives tribal governments the final word on placement of Indian children.

"There is no resource that is more vital to the continued existence and integrity of Indian tribes than their children," the law says.

Craig Dorsay, a lawyer in Portland, Ore., helped draft the Indian Child Welfare Act. He has written a textbook on its operation, handled related court case in 26 states and has conducted more than 100 training sessions for tribal workers and socialservice agencies.

Asked if the law works, Dorsay acknowledged there have been "mixed results."

"There are some states that are very good with the act, such as Arizona, and others that are not," Dorsay said.

"It's no different from laws against baby-selling which are common in every state. But in this case, the figures leading up to the act show that Indians were losing more than a quarter of their children."

Dorsay said that how well the law works is dependent on the background of the participants and the willingness of non-Indian judges to recognize tribal rights in determining the placement of Indian children.

Some lawyers who go to court for Indian adoptions have never even heard of the law, he said.

"You'd be surprised the number of times I get calls from lawyers who say they are going into court in five minutes with a case," he said. "They say they just heard of the law and ask me to explain what it is and how it works."

Attempts to enlighten people unfamiliar with tribal customs almost impossible.

seem

Sociologists describe two basic kinds of families: nuclear and extended.

In non-Indian society, the traditional family is nuclear, in Indian society, it is extended.

A nuclear family consists of parents, children and sometimes grandparents, but the unit generally is limited to those people directly related by blood and living under one roof.

In a nuclear family, parents are perceived as the ultimate authority for their offspring. Even close relatives attempting to interfere with that authority are met with stony stares or sometimes curtly told to mind their own business.

Indian adoption, placement facts

25 to 35 percent of Indian children are removed from their families.

⚫85 percent of Indian children removed from their homes are placed with nonIndian families.

There are 2.7 times as many Indian children in foster-care homes as non-Indian children.

Federal law requires that tribal courts be notified about any adoption proceeding involving an Indian child.

A tribal court may intervene in a custody proceeding at any point, under federal law.

By tradition and tribal law, an Indian grandmother has rights equal to a mother's in child-custody questions.

"Indians raised in non-Indian homes tend to have significant social problems in adolescence and adulthood," to the American Academy of Child Psychiatry said in a 1975 report.

Source: National Indian Justice Center at Petaluma, Calif.

The extended family is a larger concept that involves aunts, uncles, cousins and almost everyone else related by blood.

An Indian child, for instance, could move in with a cousin for an extended period of time if necessary, without fear of creating an imposition.

Such an occasion may arise when the child's immediate family has experienced a crisis.

The Navajo language, in which Navajos call themselves Dinch, or "the people," provides a clue to the difference.

The Navajo, phrase for "my mother" is shima. The phrase for "my aunt" is shima yahzi, or "little mother." The added yahzi implies the role of an adjunct mother who can be

called upon by other family members. The closeness of the words leaves little doubt that the parental authority of a mother gan readily be extended to an aunt when needed, according to Navajo tradition.

In many tribal societies, the concept of the extended family is further broadened to include the legal authority of tribal elders or officials to intervene when children are involved.

The reasoning is based on the assumption that family members also are part of a larger tribal family that has a right to maintain its cultural integrity.

Dorsay said that infant-adoption cases sometimes receive publicity because well-to-do, non-Indian families seem to be providing material things that are unavailable in some poorer Indian communities.

"Everyone says they accept the principles behind the law, but then they add, 'But in this case, there should be an exception," he said.

Those exceptions ignore tribal beliefs that a grandmother or aunt "all have equal legal right and responsibility for the child," he said.

"That's a concept that is very difficult to get across in the courts," he added.

It is equally difficult for non-Indian society to come to grips with the idea that a tribe may exercise rights that override parental rights, Dorsay said.

"The parent has the right to give some idea of where he or she wants to place a child, but the law says that desire shall not outweigh the right of a child to grow up as an Indian," he said.

Dorsay said that greater authority given to tribal governments also brings a greater responsibility.

Along with the authority to make decisions for minor children, tribes have responsibilities to conduct background investigations, handle paper work, appear in court and establish social-service agencies, he said.

Unfortunately, "resources are really a difficult subject" in carrying out provisions of the Indian Child Welfare Act and tribal governments "often do not have the funding to carry out those responsibilities," Dorsay said.

Cheryl Pitts (left) takes

baby Allyssa from the child's. natural mother, Patricia Keetso." Keetso, a Navajo, wants Cheryl and Rick Pitts to adopt the baby, but a Navajo court will make the final decision on permanent custody, as the case falls under. the Indian Child Welfare Act.

With or without proper funding, he said, "the law is real clear now."

"The tribes clearly have the jurisdiction to oversee the adoption or placement process of their children," he said.

Dorsay added that the standards of Anglo society should not be imposed on Indian society.

Yvette Joseph is a professional staff member in Washington, D.C., for Sen. Daniel Evans, R-Wash., vice chairman of the Senate Select Committee on Indian Affairs. Joseph said the panel is drafting amendments for reauthorization of the law and will hold hearings on the changes May 11.

Among those amendments are provisions to protect family rights, monitor the implementation of the law and provide additional funding for tribal governments, she said.

Joseph agreed that when the law was passed in 1978, not enough money was allotted to make it work as well as envisioned. More importantly, she said, even the people who use the law do not fully understand it.

"Through the years, the act has really not had a chance to evolve to full utility because of that lack of understanding," she said, citing a high turnover rate among social-service workers and a constant need to retrain tribal officials.

"I've heard it described as a schizophrenic law-legalistic issues on the one hand and the humanistic issues on the other," she said. "It's one of those laws that deals with social and legal issues simultaneously.

"How those two are integrated creates the difficulty in applying the law."

Phyllis Bigpond, executive director of the Phoenix Indian Center, agreed that the law is not fully understood and said there are "differing views about how it should work."

"It's not an easy thing to work with, but I agree with the intent," Bigpond said. "It seems to me that the benefit is worth the difficulties."

She said that each year, her agency works with about 100 families "in which there is a child at risk which could lead to some kind of placement."