DO-GOODER RACIST LAW HURTS KIDS

A 30-year-old law to protect Native Americans puts adopted children who’ve never set foot on a reservation at the mercy of Indian tribes

At Jackie Robinson Stadium in Los Angeles, Chris Moore, 11, lines up on a long-jump pit partly shaded by shimmering magnolias. His parents, John and Terri, watch from behind a chain-link fence. Step . . . step . . . step . . . sprint . . . leap. Sand sprays up around Chris' landing and his parents burst into applause. "Great job, Chris! Great job!" his dad yells. The boy trots over to the fence and—there's really no other way to describe this—sparkles. Green-eyed, freckle-faced, ears poking through his strawberry-brown hair, he twines his hands through the links and grins as he reports his personal best: "Three-three-nine!" That Chris belongs to the man and woman on the other side of the fence is signified right on his sky-blue warm-up pants, where the name "Moore" is embroidered across his left thigh. No big deal to most kids. But to Chris, being a Moore is everything.

Six years ago, when his last name was Bybee, police found Chris, then 5, and his brother Anthony, 4, in an apartment in Compton, Calif., an L.A. borough notorious for gangs, crack, and murder. The apartment was a hovel: no electricity, no running water. The toilet had overflowed and the bathtub was filled with clots of tissue and a suspect mix of murky liquids. The boys slept on cardboard boxes after their mother left them there with strangers, who, when she did not return, called the police.

The following month, in July 2000, John Moore, a Long Beach, Calif., screenwriter and his wife Terri, a second-grade teacher, opened their home to Chris and Anthony, who is dark-haired, olive-skinned, and shyer than his brother. When the boys became their foster kids, "we fell in love with them immediately and they quickly became attached to us," Mr. Moore said. "They began calling us Mom and Dad after about three to four weeks."

A month later, when no relatives had come forward to claim the boys, the Los Angeles County Department of Child and Family Services (DCFS) began assessing the Moore's home for what seemed a fast-track adoption. The Moores were overjoyed. But six months later, they say, race-matching, political correctness, and the chilly indifference of social-services bureaucrats nearly ripped a fledgling family apart.

That's because Chris and Anthony are descendants of the Iowa Tribe of Kansas and Nebraska Indians. That means they're subject to the Indian Child Welfare Act (ICWA), a 1978 law that gives federally recognized Native American tribes near-complete sovereignty in adoption decisions involving children with Indian blood—even those who, like Chris and Anthony, have never had a moment's prior contact with their ancestral tribe.

Like many child welfare laws, ICWA began with good intentions. In the 1960s and '70s, American Indian children were roughly six times more likely than other kids to be removed from their family homes and placed in foster care, according to an April 2005 General Accounting Office report. Such removals resulted from a "lack of understanding of tribal cultures and child-rearing practices by state child welfare agencies and courts."

The federal government recognizes 562 tribes, each of which has a different "blood quantum" (a specified amount of tribal blood) requirement for membership. Congress intended ICWA to protect Native American families from unwarranted removal of their children, give tribes a role in making child welfare decisions, and preserve their social and cultural standards. "ICWA protects the right of Indian children to tribal resources, to own property, to run for tribal office, and learn the roles of traditional clans," said Terry Cross, executive director of the National Indian Child Welfare Association.

But Lisa Morris, administrator of the Christian Alliance for Indian Child Welfare (CAICW) and an ICWA critic, points out that Indian children adopted by non-Indian families retain the same rights. ICWA, she said, enables tribal governments to interfere in custody battles between parents, overturn county decisions in favor of the tribally enrolled parent, and for even part-Indian kids with a non-Indian family ready to adopt them, delay placement while tribes attempt to gain custody instead.

That's what happened to the Moores. Six months passed and the Moores surrounded Chris and Anthony with friends, family, and church activities. Social workers were encouraged by the rapid bonding between the Moores and the boys. Meanwhile, no other blood relative had come forward and any "relative preference" that might have applied under California law had already expired. Then, in December 2000, Chris' grandmother surfaced. She had had no prior relationship with the boy but told DCFS workers that she wanted custody of him. Only Chris, though—she did not want Anthony.

"The kids' social workers, therapist, and attorney all had the same concerns," Mr. Moore said. "Where has this woman been? Why should she suddenly show up now when Chris is doing so well? And how could she even consider splitting the boys up?" Then a new wrinkle: The grandmother notified DCFS that the boys were of Native American descent. And where the young brothers had settled into a stable, loving home and were on the fast track to permanency, suddenly DCFS slammed on the brakes.

DCFS spokesman Stuart Riskin said the agency is prohibited by confidentiality rules from commenting on any specific case, or even confirming that the agency worked with the Moores. As for ICWA, he said, "We are mandated to protect the heritage and integrity of Native American children who come under our jurisdiction. We refer them back to the tribe and the tribal elders take it from there."

The Iowa tribal elders did their best to take both boys from the Moores, the couple said. A two-year custody battle ensued during which the tribe attempted to place Chris and Anthony with Chris' grandmother (who finally agreed to take both boys), even though she was white like the Moores and had no connection to the tribe.

The Moores say the boys endured forced weekend visitation in preparation to make the move. Twice before visits, Anthony vomited (a reaction a social worker said was "normal," Mr. Moore claims) and once clawed his face until it bled. Chris suffered nightmares. Meanwhile, the Moores claim that a Native American social worker in the DCFS Indian Unit had sided firmly against them—even after the grandmother told the boys' therapist that she intended to return Chris to his father, who had been in trouble with the law and had had very little contact with his son since birth. Anthony would stay with her. All this because 30 years earlier, the boys' maternal grandfather, who was one-quarter Indian, had enrolled in the Iowa Tribe. Two generations later, Chris and Anthony were, at most, one-sixteenth Indian. But ICWA's jurisdiction is ironclad and applies whether a parent is full-blooded Indian or not.

Under the law, tribal wishes even supersede those of birth parents. In the 1989 case, Mississippi Choctaw Indian Band v. Holyfield, an unmarried man and woman who were enrolled members of the tribe gave birth to twins 200 miles from the tribal reservation. After their parents consented to release the children for adoption, they were adopted by the Holyfield family, who were non-Indian. The Choctaw challenged the adoption, but the Mississippi Supreme Court ruled that the adoption was legal because the twins had never been physically present on the reservation and because they were "voluntarily surrendered" by their parents, who went to some efforts to see that they were born outside the reservation and promptly arranged for their adoption. But on appeal, the U.S. Supreme Court ruled that Congress could not have intended to allow "individual Indian parents to defeat the ICWA's jurisdictional scheme simply by giving birth . . . off the reservation."

The 2005 GAO report, requested by Rep. Tom DeLay (R-Texas), studied ICWA outcomes but was inconclusive. The agency was able to gather data on Indian children in only five states, and child welfare agencies responding to GAO surveys often answered only half the questions. Also, researchers interviewed tribes, child welfare officials, and adoption professionals, but no adoptive or foster parents. The report did not reflect the claims of ICWA critics that the law has so mushroomed in supremacy that social-services agencies cede authority to tribal governments even when doing so will place children in harm's way.

In 2004, for example, Emilio Rodriguez, 3, and his brother Jose, 4, were beaten so severely that doctors say Jose will probably never walk or talk again. Both boys are of Mexican and Indian descent, and they had been living in a safe and stable Palmdale, Calif., home with their paternal grandmother. But using ICWA, the Ute Indian Tribe pushed to have them moved to the home of their maternal grandmother on the tribal reservation in Utah. On Aug. 30, 2004, three weeks after the Rodriguez kids moved in with her, the grandmother blackened Emilio's eyes and beat Jose into a coma. According to U.S. District Court records, the grandmother had a lengthy history of alcoholism and had already been convicted twice of child endangerment before social services, cleaving to the letter of ICWA instead of children's best interests, placed the boys in her home.

CAICW asserts that ICWA elevates tribal heritage above any other sort of heritage. For example, if a tribe requires one-sixteenth blood quantum for membership and intervenes in an adoption case, the child's Indian ancestry is said to trump his majority heritage, even if the child is fifteen-sixteenths Hispanic. But NICWA director Cross said the law's reach isn't based on race. ICWA governs "a political status . . . it's an issue of citizenship," Mr. Cross said. A member of the Seneca Nation of Indians, Mr. Cross told WORLD that Native American children are always better off with a tribal family. Even an itinerant placement plan, he said, in which a child moved from tribal home to tribal home—a few months with a distant aunt, several weeks with a cousin, another few months with another relative, even if those relatives were strangers—would be "superior" to placement in a nontribal home, even if the child had already bonded with foster parents for a year and was established in school.

Lisa Morris and her husband, Roland, co-founded CAICW before he died of cancer in 2004. Mr. Morris was a member of the Minnesota Tribe of Leech Lake Indians. After watching many Indian children treated poorly under ICWA, the Morrises began to speak out. But they found it difficult to penetrate the bubble of institutionalized Native Americanism. In 1997, for example, the Senate Indian Affairs Committee held hearings to consider amending ICWA. "We asked Sen. [Max] Baucus if we could testify," Mrs. Morris said. "He said no, they had everyone they needed to testify."

Those who did testify included tribal leadership, tribal lawyers, social-services employees, and people working in the adoption industry. "You didn't see non-Indian foster parents and adoptive parents," Mrs. Morris said. "You didn't see Indian children who have grown up in white homes. You don't see people like our family who have moved off the reservation and made a different life. No one is asking why they made that choice."

Despite the legal hurdles, Chris and Anthony officially became Moores in 2002. This year, the Moores added a daughter to their family, Ashley, who is part Hispanic and also a descendant of the Lumbee tribe. At 14 and charmingly frank, Ashley had bounced around the foster-care system for seven years after being abused by her mother. She now says the whole concept of race as a basis for adoption is "crazy." After Ashley's grandfather objected to the Moores' adopting her because of their skin color, she even made a running joke of it: "Now I tell my parents, you can't help me with my homework because you're white."

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