ICWA Is Politicizing the ‘Best Interests’ Determination

“[V]arious debunked mental health theories continue to exert inappropriate influence over the decisions of family courts.” – Nichols (2013)

We all agree we want what’s best for children. To do that, we must base our legal decisions on the best possible science.

Congress passed the Indian Child Welfare Act (ICWA) in 1978 to remedy child welfare systems’ mass removal of indigenous children, often unfairly and as a result of cultural bias. In March of 2015, the Bureau of Indian Affairs (BIA) proposed new regulations for ICWA’s implementation.

The guidelines that preceded the regulations argue that a best interest hearing isn’t necessary for indigenous children because their best interest is always with the tribe.

“…[I]t is inappropriate to conduct an independent analysis, inconsistent with ICWA’s placement preferences, of the ‘best interest’ of an Indian child. The provisions of ICWA create a presumption that ICWA’s placement preferences are in the best interests of Indian children; therefore an independent analysis of ‘best interest’ would undermine Congress’s findings.”

The evidence frequently cited for the argument is the Split Feather Study appended to Adoptive Couple v. Baby Girl, a 2013 ICWA case before the Supreme Court of the United States.

In 1994, Dr. Carol Locust interviewed 20 American Indians who were adopted or fostered by non-Indian parents. She argued that “every Indian child” is at risk of “long-term psychological damage” as a result of an out-of-culture placement. Further, “19 out of 20 have psychological problems related to their placement in non-Indian homes.”

The Split Feather Study’s conclusion is that Indian children are fundamentally different: a home with the tribe is the most important best interest factor, overriding all scientific understanding of trauma and attachment. Unfortunately, the study violates all the most fundamental requirements of logic and the scientific method.

Locust is stating that the removal caused psychological problems but doesn’t acknowledge that it’s traumatic for any child to be removed and that abuse and neglect cause trauma. She ignores the fact that youth in foster care experience rates of witnessed domestic violence, abuse, neglect, and parental substance abuse higher than the general population.

The suicide rate is two and a half times greater in American Indian and Alaska Native peoples (AI/AN) ages 15-34, and poverty is more than twice as high as in the general population. When compared to the general population, AI/AN individuals experience higher rates of child sexual abuse, substance abuse, domestic abuse, rape, and Post Traumatic Stress Disorder.

Locust, however, doesn’t acknowledge that such devastating poverty and trauma plague AI/AN children before their removal and might, in fact, persist into their out-of-culture placements.

Locust notes that some children were abused or neglected in their adoptive families, but the Split Feather Pilot Study doesn’t control for (or even mention) abuse or neglect the children suffered prior to their removal. And even if none of the children were abused in their original homes, the unforgivable abuse by those adoptive families (rather than removal from culture) could completely account for their psychological distress in adulthood.

In science, it’s very important to describe the study carefully so that it can be evaluated and replicated. Most studies are published in scientific journals, and there’s a standardized way to report study methods. Locust’s study was never published in a journal, and, contrary to all basic scientific norms, she is secretive about her methods. I asked Locust for her methods and data in a letter. She responded by email saying that her data was confidential, ignoring my request for methods.

I sent her three follow-up emails asking for a description of her methods. She failed to respond to any of the three emails.

What we can gather from her newsletter publications is that her sample was biased. They were likely from a group of people who came to Locust because they were dissatisfied with their out-of-culture adoptions.  She also failed to use a control group of any kind.

As a result, we have no idea if AI/AN children adopted out of culture have worse outcomes than those adopted within their culture. We don’t know if AI/AN children have worse outcomes than other children who experience out-of-culture adoption.

Locust doesn’t report at what age the adoptees in her sample were removed. Children removed as infants are less likely to be affected than children at older ages, especially those removed during the pre-teen and teen years.

There are numerous problems with the concept of the Split Feather Study. Yet it is still frequently used in family and tribal court over 20 years since its publication. It is past time for researchers to do a valid study designed to detect the effects of out of culture adoption on AI children.

Until then, those who support their argument with this study are committing fraud.

Dr. Bonnie Cleaveland is a board-certified clinical psychologist and a child welfare activist in South Carolina. 

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