TRANSRACIAL ADOPTION: IS THE ICWA A MODEL THAT CAN BE ADJUSTED TO PROTECT BLACK CHILDREN? - ADOÇÕES TRANSRACIAIS: O ESTATUTO DE SEGURIDADE SOCIAL DA CRIANÇA INDIGENA PODE SER AJUSTADO PARA PROTEÇÃO DE CRIANÇAS NEGRAS?
Doutora pela Faculdade de Direito da Universidade de Connecticut (UConn)
Assistente na Corte Superior de Connecticut.
Recebido em: 29.09.2019
Última versão do(a) autor(a): 27.11.2019
Abstract: This paper will analyze the role of race transracial adoptions, more specifically, how the children are affected by the process. I will discuss the harmful effects that slavery had on the Black family and whether the Indian Child Welfare Act (“ICWA”) is an effective legislative tool that could be remodeled to limit the number of transracial adoptions and reunite more Black children with their families and communities. One of the tactics used by slaveowners to increase their profits was the separation of the Black family. Despite the emotional, mental, and physical harms that can come from tearing families apart, financial motivation took precedent. While I do not argue or support the notion that transracial adoptions are a form of slavery, the financial motivations behind the adoption and foster care system with the added component of the separation of children from their parents is eerily similarly to some aspects of slavery. There have been many discussions and papers that have focused on the role of race transracial adoptions, more specifically, how the children are affected by the process. Every year, thousands of children are adopted and enter homes that they wouldn’t have otherwise gotten. On the contrary, children who are taken from their homes are also deprived of their heritage—one of the driving forces behind the implementation of the ICWA. However, the protection of the ICWA is not afforded to Black children who aren’t connected to a readily identifiable tribe. The history of Black children in America has been a toxic and tragic one which is why the increased number of transracial adoptions, more specifically with Black children entering the homes of White parents is a cause for concern. The Federal government should enact legislation that affords Black children the same protection that Native American children receive under the ICWA—irrespective of tribes.
Keywords: Transracial Adoptions. Indian Child Welfare Act of 1978. Black Childrens
Resumo: O artigo analisa as adoções transraciais e, mais especificamente, como são afetadas as crianças no processo de adoção. Discutirei os impactos prejudiciais do escravismo nas famílias negras e se o Estatuto de seguridade social da criança indígena é uma ferramenta jurídica efetiva que poderia ser ajustada para limitar o número de adoções transraciais, fomentando a reunião de famílias negras e comunidades com as crianças acolhidas. Escravizadores usaram a estratégia de separar famílias para aumentar seus lucros. Mesmo em face dos danos psicológicos, emocionais, e físicos que tais separações causavam, a prioridade era o lucro econômico financeiro do escravizador. Não argumentando que adoções transraciais seriam uma forma de escravismo, o paralelo entre sistemas de acolhimento e adoções e separações de famílias negras permanece contemporaneamente perceptível. São muitos os artigos sobre o tema das adoções transraciais com foco em como as crianças são afetadas por tais procedimentos de adoções. Todos os anos, milhares de crianças são adotas e ingressam em famílias onde não ngressariam não fosse por tal via. Ademais, crianças cujos pais são destituídos do poder famíliar e adotadas por famílias com outra identidade racial são deprivadas de suas heranças culturais – esse argumento um dos fundantes e justificadores da declaração do estatuto de seguridade social da criança indígena. Ocorre que a proteção garantida no estatuto não é garantida as crianças negras, porque não são imediatamente identificadas como pertencentes a um grupo “tribal”. A história das crianças negras americanas tem sido uma história tóxica e trágica, por esse motivo o aumento de adoção de crianças negras por pais brancos deve provocar um detido olhar atento. Uma norma legislativa que garantisse as crianças negras as mesmas proteções daquela declarada para crianças indígenas deveria ser editada pelo governo federal.
Palavras-chave: Adoções transraciais. Estatuto de seguridade social da Criança Indigena, Crianças negras.
Sumário: 1. Transracial Adoptions. 2. Tradition As Old As Slavery. 3. The Introduction Of The Indian Child Welfare Act Of 1978 (ICWA). 4. Black Children And Federal Protection. 5. References.
1. Transracial adoptions
Transracial adoption refers to the adoption of a child that is of a different race of the parents. National and International transracial adoptions have become socially accepted and increasingly popular. Studies show that 84% of international adoptions are transracial  . While transracial adoptions are common, they don’t come without their own unique set of concerns. Adoptions in and of itself are quite complex and the addition of racial differences adds a unique tension to the dynamic. Children become aware of racial differences at a very early age and while they might be able to identify the surface level differences, they might not understand how race might impact their lives  .
Many agencies such as The National Association of Black Social Workers (NABSAW), opposed the practice of transracial adoptions. NABSAW referred to it as a “particular form of genocide  . In September 1972, NABSAW released a position statement on transracial adoption whereby they “vehement[ly] [[stood] against the placement of Black children in White homes for any reason”  . NABSAW’s position was that Black children belonged in Black families “…physically, psychologically, and culturally in order that they receive the total sense of themselves and develop a sound projection of their future”  . In the years following, there was a rapid decrease in the number of transracial adoptions. However, in 1994, Congress passed the Multiethnic Placement Act (MPA) which made it “illegal for agencies to refuse to place a child with parents of another race”  . There is no mandate in the MPA that agencies consider the cultural, ethnic, or racial background of the child that is up for adoption—there is only a suggestion. Even with agencies such as NABSAW opposing transracial adoptions, the MPA increased the numbers of transracial adoptions by 50%  in years following.
Adoptions agencies latched onto the MPA as a saving grace to help them match White families with children. The demand for same race matching was high as to avoid unpopular opinion about unnatural bonding between parents and children of different races. The “supply” for White children did not match the “demand” for them so adoption agencies pushed transracial adoptions as a way to satisfy White people’s desire to have children and the need for Black children to be placed in families. Derrick A. Bell, Jr.’s discusses this theory called interest convergence in his article Brown v. Board of Education and the Interest-Convergence Dilemma  . Bell, Jr. argues that the actions preceding the U.S. Supreme Court’s decision in Brown v. Board of Education  , suggest a convergence of White and Black interest. Initially, Black people believed that separate but equal was a barrier to achieving racial equality. The US had many outside factors which influenced their decision to pass Brown such as their desire to look good to the rest of the world during the cold war, wanting to make good on their promises to Black veterans, and realizing that the south would be better off financially with the passage of Brown. For a moment in time, White interest converged with Black interest in order to make the passage of Brown possible. Similarly, adoption agencies felt that the interest of White people looking to adopt converged with the interest of displaced Black children and thus the rise of transracial adoption occurred. NASBAW, however, countered this interest convergence notion in their position statement by saying that there wasn’t a convergence of interest at all. What occurred was the “recogni[tion] [of] the phenomenon of trans-racial adoption as an expedient for White folk, not as an altruistic humane concern for Black children….”  .
But what was the solution? People and agencies, such as NABSAW, who opposed transracial adoption pre-MPA wondered why adoption agencies weren’t doing more to it ensure that Black children were placed in Black families. Their response was that Black people weren’t looking to adopt children as much as White people were. However, NABSAW countered that claim in their position statement by writing:
[…] we denounce the assertions that Black will not adopt; we affirm the fact that Black people, in large number, cannot maneuver the obstacle course of the traditional adoption process. This process has long been a screening out device. The emphasis on high income, educational achievement, residential status and other accoutrements of a White middle class lifestyle eliminates Black applicants by the score  .
NABSAW suggests that the adoption process itself is a way to the screen out potential Black caretakers because they do not rise to the level of financial, educational, or social status that society thinks is fitting to raise a child. Other critics of transracial adoptions acknowledged that the aforementioned preferences are not all that’s required to be parents. Parents have to be able to relate to their children on a cultural and ethnic level and give them to tools necessary combat the inevitable discrimination that they will face  . “Being adopted by White parents may cause minority children to have difficulties in developing a sense of ethnic identity, be ashamed of their birth culture, and not be able to experience life apart from dominant White culture  ” which could be detrimental to their future. Agencies like NABSAW believe that the outside help that White parents must seek in order to raise their child in a culturally appropriate manner is unnatural  . Websites such as American adoptions.com give the following specific racialized suggestions to White parents who want to enter into a trans-racial adoption:
For Black/ African-American adoptions:
If you are considering adopting a Black or biracial child, you may wish to study African-American culture to share this with your child. There are many children’s books available that are African-American themed, as well as dolls and other toys that will allow your child to embrace their ethnic background. Popular toy manufacturers, including Barbie and American Girl, offer African-American dolls, as well as various other Internet resources. You also may wish to join playgroups or other organizations that will allow your child to interact with other African-American children. Playgroups are easily found through church or other religious organizations throughout your community, or you can organize your own with friends, neighbors and other associates with children close to the age of your child  .
For Hispanic adoptions:
Couples choosing to adopt a Hispanic child may wish to learn more about Hispanic traditions, including traditional food, stories and celebrations. Families adopting a Hispanic child may wish to learn to speak Spanish and raise their child in a bilingual home. Families also may join playgroups or other organizations that will allow the child to interact with other Hispanic children or families. If you know of any other Hispanic families in your community with children similar in age to your child, simply plan times for your children to play together, or ask them if they know of any other Hispanic families looking to form a playgroup  .
For Asian adoptions:
With the rise of international adoptions, it is also becoming more common for families to adopt Asian children. However, you don’t have to adopt overseas to adopt a child with an Asian background, as there are many Asian children available for adoption in the U.S. Families wishing to adopt an Asian child are encouraged to learn more about Asian culture, including traditions, holidays and stories. There also are many children’s books available that focus on traditional Asian themes and stories that will allow your child to identify with their culture at a young age  .
For Native American adoptions:
To protect the interest of Native American children and tribes, the U.S. government enacted the Indian Child Welfare Act (ICWA). Couples wishing to adopt a Native American child must ensure that all mandates of ICWA are satisfied in order to adopt the child. American Adoptions is fully experienced with the ICWA mandates and has handled hundreds of adoptions involving Native-American children. If ICWA applies to your adoption, this service is included in our legal services, which we provide to all of our waiting families. Families adopting a Native-American child are encouraged to research the child’s tribe of origin in order to share with the child the traditions, celebrations, dress and other tribe customs. Families may also wish to seek out other Native-American families in their community to allow their child to interact with other Native-American children and families  .
These suggestion present children as if they were commodities on the market—further highlighting the profit seeking nature of the adoption business that NABSAW suggests it is. The “quick-fix” solutions such as learning about cultures and holidays, overlook the very deep seeded issues and concerns that are inherent with trans-racial adoptions. For the purpose of this paper, I will analyze the historical struggle between White people and Black people as well as White people and Native American people as it pertains to the removal of children, in order to fully understand the opposition to transracial adoptions.
2. Tradition as old as slavery
A mother unleashed a piercing scream as her baby was ripped from her arms during a slave auction. Even as a lash cut her back, she refused to put her baby down and climb atop an auction block. But the child was torn from the arms of its mother amid the most heart-rending shrieks from the mother and child on the one hand, and the bitter oaths and cruel lashes from the tyrants on the other…. Enslaved mothers and fathers lived with the constant fear that they or their children might be sold away. 
Displacement of Black families, more specifically, Black children, is nothing new. Black children have been displaced from their families since the very early days of slavery. Families were separated and packed unto slave ships, sold to bidders, and dispersed to foreign lands. Children, with no understanding of the cruel world that lie ahead, were forced to mature in order to ensure their survival. Children learned to fear auctions, even if they had not yet been separated from their family  . They knew from a very early age, that their sale could occur at any moment. Children who were not sold but witnessed auctions could recite bids decades later  . Vanessa Holden details in her article  the story of Harriet Mason, former slave, who remembered what is was like to be separate from her mother and forced to work at the tender age of 7:
Mason remembered her mistress forcing her to leave her home and family in Bryantsville, Kentucky, to work in Lexington as a servant at the age of seven. She remembered, ‘when we got to Lexington I tried to run off and go back to Bryantsville to see my [mother].’ The grief of a childhood spent away from her family at the whim of her owner led her to suicidal thoughts, ‘I used to say I wish I’d died when I was little.’ Even in her old age she was firm that, ‘I never liked to go to Lexington since’.
Until the end of the Civil War, it was common for slave owners to separate families by selling the children to other slave owners  . The interest of slaves, did not converge with their master’s. White master’s wanted mass productivity. They needed servants like Harriet Mason to drive their system. Slaves, while they obviously wanted freedom, realized the intense obstacles that lie ahead to this freedom. Slave owner’s wealth lay largely in the people they owned so they traded and sold their slaves as their finances warranted. Slave masters intense desire for profit, drove the market and they believed it was more profitable to separate children from their parents, especially adolescent boys, to improve productivity. In his narrative, Frederick Douglass suggests that slave-owners separated Black children from their parents in order to stunt the development of affection between them  . “Abolitionists […] argued that slavery was immoral on many grounds, and the destruction of families was one of them”  .
Although slavery officially ended  in 1865 with the enactment of the thirteenth  amendment, the trauma of these barbaric separations lived on. The government maintained these evil tactics through the Fugitive Slave Laws  , the Enrollment Act  , The Black Codes  and other rules and laws which maintained that African Americans were property  . The laws further orphaned children by bounding them to apprenticeships and imprisoning their parents. Yet, the Black family was not deterred and was determined to reunite their families once more. “About one-third of enslaved children in the upper South experienced separation either by being sold themselves or from losing a mother, a father, or siblings”  . After the Civil War, thousands of recently freed slaves desperately searched for lost family members. These measures to once again formalize family relations were through word of mouth and newspaper ads  . On August 25, 1865, only four months after the end of the Civil War, an ad in the Montgomery Advertiser read: “Information Wanted, Of Racheal, a young Mulatto Woman, who was sold in this city in the Spring of 1864, to Mr.--- Moore by Mrs. Mary Ann Baldwin, of Mississippi. Information of her whereabouts, left with us will be thankfully received by her father”  .
Newspapers, like the Montgomery Advertiser, were flooded with “Information Wanted” ads by mothers, children, fathers etc. who were looking to be reunited with their families  . If they were lucky, the person on the receiving end would receive detailed information regarding the missing person—former names, locations of where the family member was last seen, circumstances of the separation, sketched maps tracing homes of previous slave owners etc.  .
The effects of the separation of the Black family continues to prove to be an irreversible harm. The abolishment of slavery meant that the normalized every day brutalities and indignities of slavery were gone, but the years after slavery proved to be difficult in other ways. The vicious cycle of tearing Black families apart didn’t disappear, it simply transformed itself. Former slaves were not compensated for the years of labor that they contributed to the American economy and Black families are still suffering from the harms done to them so many years ago. Many Black children are brought up in single family households or near-nuclear  households. We now live in the time of mass incarceration where Black adults have outnumbered White adult inmates  even though the Blacks make up only 13.4% of the population  . In their article entitled, Racialized Mass Incarceration: Poverty, Prejudice, and Punishment  , Lawrence D. Bobo and Victor Thompson set forth a sociological perspective which explains that anti-Black bias is correlated with punitive punishment—evidenced in the anti-Black laws put forth at the end of the Civil War. Through their study, Bobo and Thompson show that racial stereotypes and collective racial sentiment all are positively correlated with criminal justice policy punitiveness. Through mass incarceration, our government has exercised anti-Black punitive legislation that has continued the long legacy of separating Black families.
As a nation, the United States has inflicted irreparable harms upon the Black family—harms that they have not remedied. It happened to Native American children as well. The only difference was our response as a nation.
3. The introduction of the indian child welfare act of 1978 (icwa)
The ICWA  was initiated in 1978 in response to a national crisis affecting Native American Indian children and their families. According to studies  , 25%-35% of all American Indian/ Alaskan Indian (“AI/AN”) children were removed from their homes by state child welfare and private adoption agencies. Of the 25%-35% of children that were removed from their homes, 85% of them were placed in homes outside of their families and communities—even when there were relatives that were fit and available to receive them  . Some of the reasons for removing these children were either illegal or based on racist premises.
The removal of these children had devastating impacts on their families and communities. Families and tribes petition Congress to act and the ICWA was passed. Congress’ intent under the ICWA was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families”  . In order to do so, the “ICWA set federal requirements to apply to state child custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe”  . In these proceedings, there’s a focus on making sure that the parent, tribe, or an AI/AN guardian is involved in the process. Even in an adoption or foster care proceeding where a tribe isn’t involved, the state must still apply the ICWA as long as the child is eligible for membership as a tribal member, is unmarried, and under eighteen years old  . The ICWA also provides for the removal of a child’s case from state court to tribal so that the tribal court can retain jurisdiction over the matter  . In addition to identifying the culturally appropriate placement for an AI/AN child, the ICWA also mandates that caseworkers make several considerations in regards to handling ICWA cases such as “Providing active efforts to the family; Identifying a placement that fits under the ICWA preference provisions; Notifying the child’s tribe and the child’s parents of the child custody proceeding; and Working actively to involve the child’s tribe and the child’s parents in the proceedings”  . Not only does the ICWA seek to remedy systematic abuse against the children and families that were harmed, it does so through the context of understanding the political and cultural components of the of the AI/AN community. The mandate to provide “active efforts to the families” is one of the hallmarks of the act. The ICWA defines “active efforts” as “the affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with his or her family”  . This should be contrast with reasonable efforts which may only include referrals to services. Active efforts go one step further. They help families with some of the very basic and common obstacles that could be barriers to reunification such as lack of transportation. In A.M. v. State  , the Court stated:
Active efforts, on the other hand, include tak[ing] the client through the steps of the plan rather than requiring the plan to be performed on its own. ‘As part of active efforts, the party ‘shall take into account the prevailing social and cultural conditions and the way of life of the Indian child’s tribe.’ They shall also involve and use the available resources of the extended family, the tribe, Indian social services agencies, and individual Indian care giver.
The Court realized that the intent of the ICWA was not just the preservation of cultural heritage. The longevity and protection of cultural heritage can only be maintained if families have necessary support to successfully raise their children. The court realized that this support starts at a very basic level. The effects of the harm done to AI/AN children could not be remedied if the state could not provide the basic assistance that would be necessary for parents, tribes, and family members to be active participants in the proceedings. The increased measures to ensure that AI/AN children are kept in the care of their family and tribes, has been called “the gold standard  ” of child welfare policy.
Although the ICWA has made great advancements for AI/AN community, The National Indian Child Welfare Association reports that AI/AN children are more likely to be placed out of their homes than the general population  . In fact, AI/AN children are four times more likely to be removed from their homes than their White counterparts.  While this fact may be true, it provides statistical evidence that does not account for the removal statistics of AI/AN children’s Hispanic/Latinx, Asian, and Black counterparts. with a federal law implemented specifically for the protection of AI/AN children, these results are quite shocking. Laws are meaningless without enforcement and the lack thereof is the causes of such high statistics. To remedy these unfortunate outcomes, the Bureau of Indian Affairs (“BIA”), published revised guidelines for the federal guidance of state courts regarding Indian Child Custody  . “These regulations provide clarification of many of the key requirements under ICWA and are legally binding”  .
The ICWA was vital to the historical protection and longevity of the AI/AN community at large. It is a direct response to the longstanding abhorrent removal practices that targeted AI/AN children for many years. While this Act isn’t perfect, it’s a tangible effort from the government that shows their acknowledgment of the wrongs which occurred and the remedial measures for the future protection of those harmed.
4. Black children and federal protection
The reality is that there are no federal acts in place to remedy the historical harms that have been done to Black children over the years. Additionally, there are no laws, such as the ICWA that can protect them in the way that AI/AN children are protected. Although the ICWA is not always enforced, the mere existence of it is provides some comfort to AI/AN families who are in going through the removal process—a comfort that has not been experienced by many black families.
The most important thing in this process is the well being of the child and I believe that all parties can agree on that. However, it is imperative that all parties agree on what the best interest of the child must be. The black family, more specially, the black child, has been the recipient of some of the worst government enacted anti-black, racist, profit seeking legislation that has existed in our country and yet, they have made very little effort to remedy those harms. Our government needs to take affirmative action to ensure that the best interest of the Black child is always put first in a transracial adoption and until they do that, they will continue to fail black children in the foster care system.
In proposing my argument, I am aware of the essentialist  views that I have put forth. Harris states that essentialism occurs when the experiences of a category, such as race or gender, is reduced to the experience of one subgroup  . Pain, suffering, familial displacement has not only been experienced by Black and AI/AN children. In my analysis of the adoption system, Black and AI/AN children, and the ICWA, I have failed to discuss the many harms that have been inflicted upon Latinx, Hispanic, Asian, White children etc. and the steps that our government can take to ensure the protection and reunification of these children with their families. Given that Black children are the second largest population in the foster care system  , there needs to be a better way to make sure that families are given the tools necessary to participate in the proceeding that will take place as and the support that they need to care for their child.
AMERICA’S ADOPTION AGENCY. Study Reveals Transracial Adoption is More Popular Than Ever, 24 August 2017. Available at: https://www.americanadoptions.com/blog/study-reveals-transracial-adoption-is-more-popular-than-ever/.
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UNITED STATES OF AMERICA. 25 U.S.C 1912 §102 (d), 1978.
UNITED STATES OF AMERICA. Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901 et seq, 1978.
UNITED STATES OF AMERICA. The Enrollment Act, 12 Stat. 731, 1863.
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WILLIAMS, Heather Andrea. How Slavery Affected African American Families. Freedom’s Story, Teacher Serve© National Humanities Center, 16 December 2018. Available at: http://nationalhumanitiescenter.org/tserve/freedom/1609-1865/essays/aafamilies.htm.
 RAINBOW KIDS ADOPTION & CHILD WELFARE ADVOCACY, 2018.
 Id.; See also SIMON; ALTSTEIN, 2000.
 National Association of Black Social Workers, 1972.
 Id.; See JENNINGS, 2006.
 AMERICA’S ADOPTION AGENCY, 24 August 2017.
 US SUPREME COURT, Brown v. Board of Education, 1954.
 National Association of Black Social Workers, 1972.
 ESPINDOLA, 2011; S. DOCAN-MORGAN, 2011.
 National Association of Black Social Workers, 1972.
 AMERICA’S ADOPTION AGENCY, 2017.
 WILLIAMS, 2018; See also DOUGLASS, 2003.
 See U.S. Const. art. XIII §1 (Except as punishment for crime where a party has been duly convicted).
 U.S. Const. art. XIII §1.
 The Fugitive Slave Act, 1850.
 The Enrollment Act, 1863.
 PITNER, 2018; See also WILLIAMS, 2012.
 Id. (“Those ads are now being digitized in a project called ‘Last Seen: Finding Family After Slavery,’ which is run by Villanova University’s graduate history program in collaboration with Philadelphia’s Mother Bethel AME Church.”)
 Not of the immediate family (father, mother, brother, and sister).
 United States Census Bureau, 2018.
 BOBO; THOMPSON, 2010.
 Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901 et seq (1978).
 NATIONAL INDIAN CHILD WELFARE ASSOCIATION, Setting the Record Straight..., 2018.
 NATIONAL INDIAN CHILD WELFARE ASSOCIATION, About ICWA, 2018.
 NATIONAL INDIAN CHILD WELFARE ASSOCIATION, About ICWA, 2018.; 25 U.S.C. § 1902
 25 U.S.C. § 1903 (1978)
 25 U.S.C. 1911 §101 (b) (1978)
 25 U.S.C 1912 §102 (d) (1978)
 SUPREME COURT OF ALASKA, A.M. v. State, 1997 (citing CRAIG J. DORSAY, THE INDIAN CHILD WELFARE ACT AND LAWS AFFECTING INDIAN JUVENILES 157-58 (1984)); Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,592 (Bureau of Indian Affairs Nov. 26, 1979) (guidelines for state courts).
 NATIONAL INDIAN CHILD WELFARE ASSOCIATION, About ICWA, 2018.