By: Brittany Habbart

The crippling effects American Indian (AI) adoption has had on the Indian community forced Congress to take action and pass the Indian Child Welfare Act (ICWA) in 1978.[1] Since then, ICWA has continued “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.”[2]

Currently ICWA is under attack in Brackeen v. Haaland (formerly Brackeen v. Zinke and Brackeen v. Bernhardt). After 41 years of implementation, three non-Indian families and Texas, Louisiana, and Indiana have sued the federal government alleging that ICWA is unconstitutional.[3] In 2018, the Northern District of Texas declared ICWA unconstitutional.[4] A year later, a three-judge panel from the Fifth Circuit reversed the decision.[5] Singularly, without discussing further procedure, one of the amicus briefs submitted to the panel by the Goldwater Institute, Cato Institute, Texas Public Policy Foundation, and American Academy of Adoption Attorneys, supported the lower court’s decision.[6] Within the amicus brief, the entities argued that it is unsupported that Indian children are psychologically harmed by being adopted by non-Indians.[7] I disagree.

First, Congress has recognized the psychological harm to AI adoptees in non-Indian homes. The Senate Committee on Indian Affairs held a hearing in 1974 regarding the effects of outplacement of Indian children.[8] Testimony included studies by the Association on American Indian Affairs which indicated that AI children were placed in non-Indian homes approximately 90% of the time and in foster homes 53% to 97% of the time.[9] Additional testimony provided that AI children placed in non-Indian homes faced an identity crisis, even when the children barely remembered their Indian community.[10] The Senate issued a report stating that “[r]emoval of Indians from Indian society has serious long-and short-term effects . . . for the individual child . . . who may suffer untold social and psychological consequences.”[11]

Second, there are studies and statements supporting the finding that AI adoptees face psychological harms and develop mental health issues. A 2017 study titled “American Indian and White Adoptees: Are There Mental Health Differences?” from the Centers for American Indian and Alaska Native Health at the Colorado School of Public Health found that AI children adopted away from their families were more likely than white adoptees to struggle with mental health problems.[12] Using chi-square statistics and logistic regression models, the research showed that AI adoptees had higher percentages for alcohol addiction, alcohol recovery, drug addiction, drug recovery, self-assessed eating disorder, eating disorder diagnosis, self-injury, suicidal ideation, and suicide attempt.[13] Additionally, AI adoptees were more likely to receive Social Security Disability income (15.5% compared to 2.2%).[14]

Further, organizations and professionals have indicated that AI adoptees in non-Indian homes face an increased risk of mental health issues. According to a report by the American Indian Tribal Court Judges Association, an environmental factor contributing to higher suicide rates among AI adoptees is placement in homes with non-Indian families.[15] Also, psychiatrists report that Indians raised in non-Indian homes tend to have significant social problems in adolescence and adulthood.[16] Dr. Antony Stately, an Ojibwe/Oneida clinical psychologist at the University of Washington who has focused primarily on child maltreatment and neglect, explained that “Indian kids in foster care settings where they are disconnected from siblings, family and their culture are at much greater risk for behavioral and mental health problems.”[17]

Moreover, personal accounts from AI adoptees into non-Indian homes should be considered as supportive evidence. For example, Sandra White Hawk, a Sicangu Lakota adoptee from the Rosebud Reservation[18], shared her adoption story. She said that “[e]ven in loving families, Native adoptees live without a sense of who they are. Love doesn’t provide identity.”[19]

Third, pointing out flaws in research indicates that new research should be done, not that there is no issue. The amicus brief argues that there is no support for psychological harm and focuses on the Split Feather pilot study’s technical issues.[20] In general, there is a critical need for data collection in AI/Alaska Native (AN) communities but data collection has some common issues.[21] There are sampling challenges, high costs to data collection, large margins of errors, or other issues related to the validity and statistical significance of data on AI/AN.[22] For example, the brief points out that the Split Feather study only had 20 adults surveyed.[23] Clearly another data issue regarding small sample size. To defend against this type of attack on ICWA research, Congress should request “accurate, meaningful, and timely data collection”[24] regarding the psychological harms AI adoptees face in non-Indian homes.

There are many reasons why keeping an Indian child within the AI community is in the best interest of the child. AI adoptees’ mental health and risk of psychological harm is one of them.

Brittany Habbart is a current 2L at Arizona State University’s Sandra Day O’Connor College of Law. She is an enrolled member of the Caddo Nation of Oklahoma. Within the topic of social justice, she has a strong interest in: American Indian law, disability law, LGBTQIA+, and education. Her personal interests include playing with her dog, Tango, and starting the Caddo Language Association, a Native American language non-profit.

Published by Law Journal for Social Justice at Arizona State University

The Law Journal for Social Justice ("LJSJ") is the first student-run and student-created online journal at Sandra Day O'Connor College of Law. LJSJ aims to edit, publish, and produce notable works through its online website from legal scholars, practitioners and law students. LJSJ also publishes twice a year, featuring articles that focus on important, novel and controversial areas of law. LJSJ will provide a fresh perspective and propose solutions to cornerstone issues that are often not discussed, which may also have the potential to positively impact local communities.