In This Episode
The private adoption industry has been fighting against the Indian Child Welfare Act the longest. We learn why by following one couple’s journey to adopt and their mixed feelings about the process.
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Rebecca Nagle: The stories we’re sharing this season touch on different kinds of trauma. Please take care of yourself while you listen.
Rebecca Nagle: In the past few episodes, we’ve met some of the foster parents in states who make up the federal lawsuit, Brackeen v. Haaland, and that lawsuit wouldn’t exist without them, but it also wouldn’t exist without the special interest groups that are working behind the scenes. Our investigation followed the money and found three main groups behind the attack on ICWA: corporate lawyers, right-wing funding, and private adoption attorneys. This episode, we’re starting with the adoption attorneys because they’ve been fighting ICWA longer than anyone else. For decades, Native leaders have accused the adoption industry of not following ICWA, of not following the law. But most adoption cases are private, so it’s hard to know what’s really going on. We were trying to find a way inside when a background source told me about this couple, an adoptive couple who were willing to talk
Todd: If you were to rewind to two years ago, we probably also were thinking that it’s like a parent who doesn’t want to, doesn’t want to raise the child. And then you have a family that wants to have a child and it feels like that’s the win-win that they’re describing. But, you know, I think now we feel a lot more, we feel like it’s a lot more complicated than that.
Rebecca Nagle: This couple, who will call Jamie and Todd, really wanted their first child to have a sibling. But a year and a half after their son was born, Jamie was still recovering from birth injuries. So they decided to grow their family through adoption. Once they got through the paperwork, the home study, and the upfront fees, they started getting emails with profiles of pregnant people, and they noticed something strange. Jamie and Todd live in New Hampshire, but:
Jamie: Almost all of the profiles of moms we were sent were from Arizona.
Rebecca Nagle: Through word of mouth, they had hired an adoption attorney in New Hampshire, and he worked with a lawyer in Arizona who helped find and represent birth moms. Every other family they know who went through that New Hampshire lawyer:
Jamie: Their child has come from Arizona.
Todd: And that’s like at least a dozen families I’d say, that we know of.
Rebecca Nagle: The other thing Jamie and Todd noticed was that the majority of the babies were children of color. Jamie and Todd are white.
Jamie: I don’t remember any one except maybe the New Hampshire one having a white mom, white, dad, end of story.
Rebecca Nagle: And in those emails, Jamie and Todd saw something else: Native babies being listed, with no mention of the Indian Child Welfare Act.
Rebecca to Jamie and Todd: When you guys like we’re learning about the adoption process and like went to seminars and stuff like that, did you learn about the Indian Child Welfare Act?
Todd: No, never mentioned it.
Jamie: We were told, if there’s a native child, there’s a law called ICWA and it will be more expensive, but those children are so beautiful, is what they said.
Todd: Yes, that’s true.
Rebecca Nagle, narrating: You’re listening to This Land, a podcast about the present day struggle for Native rights. From Crooked Media, I’m your host, Rebecca Nagle [ᎪᎯᏂ ᏓᏆᏙᎠ. ᏣᎳᎩ ᎠᏰᎵ ᎨᎳ.] citizen of Cherokee Nation. This season, we’re following how a string of custody battles over Native children became a federal lawsuit that threatens everything from tribal sovereignty to civil rights. Big organizations that represent the adoption industry, like the National Council for Adoption and the American Academy of Adoption Attorneys, have taken the position that ICWA shouldn’t exist. ICWA is one of the many laws in this country that regulates adoption, and the adoption industry, like a lot of other industries, frequently fights regulation. The industry wants more children to be available for adoption, not less. And that’s because it’s facing a real problem. It feels wrong to say this about human children, but it’s the truth: the problem is supply and demand.
Susan: So prior to Roe v. Wade, there were a significantly higher number of people who were choosing adoption, or in some cases really forced to place their children for adoption.
Rebecca Nagle: This is Susan Dusza Guerra Leksander, agency director at PACT, an adoption agency that serves children and families of color. By the 1980s, women had access to the pill and abortion, and it was more acceptable to have a child outside of marriage. So the number of babies available for adoption fell, by a lot, but demand continued to go up. One reason was that evangelical Christian churches started promoting what they called orphan care as an important ministry. You might remember that’s how Jennifer Brackeen talked about fostering on her blog. Adoption agencies fix the supply and demand problem by looking to other countries. By the mid-2000s, a record number of American families were using international adoption, and the industry was booming. But after the boom came the bust.
Susan: Yeah, a number of countries have stopped allowing U.S. citizens to adopt their children because of issues of neglect and abuse of those children, reports of fraud, widespread bribery, and as well as some high-profile murders and deaths of adopted children from other countries.
Rebecca Nagle: One by one, countries like Guatemala and Ethiopia closed their borders to American families. Some adoption agencies went out of business. Which is why, in their list of adoption expenses, Jamie and Todd found an odd item: $3,800 advertising fee.
Jamie: She said that is money that she then reinvests in advertising to find more birth mothers. And that felt pretty gross to us, but it was like, again, it’s like all baked in. And I asked like, can we not pay that? She’s like, if you want to adopt this child, that’s part of the fee.
Rebecca Nagle: You know those advertisements that say something like “Pregnant? Need help?” Many of those crisis pregnancy centers work directly with adoption agencies. So when pregnant people reach out, they’re not just told why they shouldn’t get an abortion, they’re told why they should choose adoption. Leksander has seen a lot of those ads, like this grid she saw in one adoption website. It had two columns: one column was what you can give your child if you parent them.
Susan: And all that’s written on there is love. And then here’s what I can give my child if I place them for adoption. And it’s like a stable two-parent home, extra money for school, the best of everything, vacations—and these are like already filled in by the adoption agency.
Rebecca Nagle: Leksander is a trans-racial adoptee herself and placed her first child for adoption.
Susan: You know, adoption is sort of the transfer of children from a family that has less resources to a family that has more.
Rebecca Nagle: And, of course, which families have more resources in the United States intersects with race. Three quarters of adopted parents in the United States are white.
Susan: The landscape is mostly pre-adoptive white parents wanting to adopt white newborns.
Rebecca Nagle: But the majority of adopted kids are children of color. Those racial dynamics create an awkward hierarchy of which children are most wanted.
Susan: It plays out just as white supremacy plays out that those races that are perceived as being more proximate to whiteness are seen as more desirable.
Rebecca Nagle: Every adoption profile I saw listed the race of both parents, but some of them listed something I wasn’t expecting: those parents’ complexions, so people could guess what color the baby would be. Most Native Americans are more than one race. We’re mixed more than any other racial group.
Susan: Biracial children, especially those where maybe the parent of color is lighter skinned and the adoption professional can sort of frame it as like, oh, like this child is going to be biracial and they might be more likely to kind of blend into your family or like maybe they’ll be able to pass as white.
Rebecca Nagle: That’s one possible reason Native babies are in demand. While the number of white babies being adopted has declined for decades, the number of Native babies being adopted has gone up, even with ICWA in place. And that’s because adoption attorneys have figured out how to get around the law. That story after the break.
Rebecca Nagle: When Jamie and Todd were looking at profiles for potential adoptive placements, they said yes to most of the ones they saw. And eventually one of those mothers said yes back. She picked them. But when that mom filled out her intake form, she checked this box that the baby was Native American. You might think that meant Jamie and Todd couldn’t adopt the baby because ICWA says that baby should go to a Native home, but that’s not how their lawyer saw it. He told Jamie and Todd:
Jamie: ICWA was the thing that means you have to stay 10 extra days and pay $10,000 extra.
Rebecca Nagle: That $10,000 was to pay this man:
Philip J McCarthy: I know some people think I’m anti-Native American.
Rebecca Nagle: Philip Jay McCarthy, he’s a lawyer in Arizona.
Philip Jay McCarthy: There’s no doubt that the history of what America has done to Native Americans is, you know, there’s no way to give an excuse for it. But when it comes to adoption, the collision here is the idea of a parent’s individual rights and the rights of a tribe.
Rebecca Nagle: We reached out to McCarthy, but he declined to talk to us. This is from a phone call Todd recorded without McCarthy knowing. Once Todd did a little research on McCarthy, he learned tribes don’t have a good relationship with him. He is notorious for fighting ICWA. But Jamie and Todd didn’t want to sidestep what felt like an important law. So they told their lawyer in New Hampshire they didn’t want to hire McCarthy. The conversation didn’t go over well. He told them:
Jamie: I’m representing you here. If you want to do the safest thing and get this child, you’re going to use McCarthy.
Todd: He’s like, I’m telling you, this high risk, it’s high risk.
Jamie: If you don’t want to use McCarthy, I would suggest that you decide not to adopt this child and you can look for another match.
Rebecca Nagle, narrating: They discussed backing out of the adoption entirely.
Todd: But like, what happens if we just decide to opt out? Like, what if we just say no? Well, then they find another family, and statistically it’ll be another white family. And like, which is for me, was this moment where it was like, it became very clear to me that this was a system, and like a systematic problem that isn’t solved by our individual choice.
Rebecca Nagle, narrating: So they decided to move forward. Once the wheels were in motion, they got to see McCarthy at work. ICWA requires that when a Native child is up for adoption, their tribe is notified, because the tribe has the right to intervene. But McCarthy told Jamie and Todd that didn’t need to happen. Here he is again from that phone call:
Philip Jay McCarthy: But when it’s a voluntary proceeding like this, the tribe doesn’t have rights that are equal to a parent. And even 40 years now since it’s been enacted, that’s still not understood. It’s like a myth that somehow the tribe has the upper hand in a voluntary proceeding, and that’s just not the law.
Rebecca Nagle, narrating: His argument is that basically a birth parent has a right to privacy and that trumps the tribe’s right to be notified. But to make sure there are no issues, McCarthy goes one step further.
Jamie: He also told us at that time that, you know, mom is probably going to sign something asking you not to contact the tribes for five years. And you may say, why five years?
Philip Jay McCarthy: Well, there’s a statute of limitations, and the statute of limitations says, you know, you don’t want to end up with a situation where, some tribes are just against adoption. I’ll just tell you. The Navajos fight every adoption, period.
Rebecca Nagle, narrating: McCarthy also picks the venue.
Philip Jay McCarthy: You’re probably thinking, why is this in Flagstaff? I’m surprised you didn’t ask that.
Todd: Yeah, he talked about how he doesn’t like to go to Phoenix because the judges in Phoenix don’t get it.
Rebecca Nagle, narrating: That judge in Flagstaff got it. She agreed the tribe didn’t need to be notified, and they weren’t.
Todd: I went from thinking that, like, they are breaking the law to thinking, oh, no, they’re creating their whole, a whole different alternate legal reality that they’re operating under.
Rebecca Nagle, narrating: Collectively, Jamie and Todd’s adoption attorneys were paid about $35,000, and that was just the legal fees.
Jamie: Part of me feels really gross, even just tabulating it. It was about $50,000.
Rebecca Nagle, narrating: I asked Jamie and Todd how they feel about the adoption now.
Jamie: Oh, so it’s, so it’s so hard, like, OK, we have the sweetest little baby girl.
Todd: It doesn’t it doesn’t take long to start to love a baby, right? Like a couple hours is all that it takes.
Jamie: Or moments.
Todd: Yeah. And so like, you know, it’s, it’s I, I would just say my feelings about it are really complicated. The way things are, are structured right now are to take advantage of like families that want to have a child that can’t and are desperate to, and to take advantage of mothers who are in a desperate life situation. And it’s not, it’s not a system that like, really could exist if it weren’t for those two ingredients.
Jamie: For desperation, right?
Todd: Right. Like my general fear from now until the rest of my life is that, is that we are not actually a good family to raise this child. And like that’ll be, what I spend the rest of my life trying to make not happen.
Rebecca Nagle, narrating: Jamie and Todd did reach out to their child’s tribe and let them know about the adoption. The adoption still moved forward and was finalized last June. Over the past few decades, the supply chain of adoptable infants has shifted multiple times, from unwed mothers in the United States to countries like Guatemala, Russia and Ethiopia. And now the industry has turned to foster care. Private adoption agencies have started new foster-to-adopt programs. They’re taking people who really want to adopt and licensing them to be foster parents. Fostering is routinely presented as a pathway to adoption on agency websites. But even within foster care, there’s still a supply and demand problem. There are more people signed up as foster-to-adopt parents than available children. And one state that gave us data, by a ratio of one hundred to one. Jamie and Todd we’re even told that they should think about it.
Jamie: Well, also, she kept telling us it’s so much cheaper,
Rebecca Nagle, narrating: But it didn’t feel right.
Jamie: I just don’t think I can handle the heartbreak of having a child for a year and then having them taken away. And I don’t feel like it’s fair to go into an adoption thinking like—a foster situation, thinking like we’re going to get to keep this child forever, because that’s—
Todd: Not what the foster care system is for.
Jamie: Right. It’s working against the reunification of the family.
Rebecca Nagle, narrating: So far this season, you’ve heard about two of the plaintiffs behind the federal lawsuit, the Brackeens and the Cliffords. When I look at their custody cases, I see the same problem. And it’s not ICWA, it’s people using foster care to adopt. Of course, that resulted in heart wrenching conflict, because that’s not the purpose of foster care. People tried to say that ICWA doesn’t work because there aren’t enough Native foster homes. But if you look at the specific custody cases behind the federal lawsuit, there’s no evidence of that. Every Native child had a Native family who wanted to adopt them. For the majority of those kids, it was a blood relative. But the white families behind this lawsuit fought any Native placement that threatened their chances at adoption. And except for Robyn, Piper’s grandma, every other Native family lost. These foster parents, Jennifer and Chad Brackeen, Danielle and Jason Clifford, and their co plaintiffs the Librettis, didn’t just fight ICWA, they fought to adopt a child over what their foster training told them to expect and do, over kinship placements that studies and experts say are best for all children, over what federal and state laws say should have happened. But instead of asking what’s wrong about what these foster parents did, we’re asking, what’s wrong with ICWA? The story of these custody cases isn’t about how ICWA prevented white families from adopting Native children, it’s about how white families are getting around the law. One question haunted our reporting for months: how did the Brackeens find that law firm, Gibson Dunn? We spent months looking for any connections. We looked up everyone who worked on the case, made lists of where they went to law school and all their past jobs, we chased down a lot of bad leads. But finally, one day we got the answer. What our investigation found after the break.
Rebecca Nagle: After months of trying to find out how the Brackeens got connected to Gibson Dunn, one day their local Texas lawyer answered the phone. She told us that it wasn’t her or the Brackeens that found Gibson Dunn. It was this other lawyer, an adoption attorney in Minnesota who specializes in ICWA. He even helped the Brackeens find her. On the phone, she couldn’t remember his name. She later confirmed it by email. But we already knew exactly who she was talking about, because this Minnesota attorney has a national reputation for fighting ICWA. He’s been part of more constitutional challenges to the law than anyone else. And his name is Mark Fiddler.
[clip of Mark Fiddler] I mean, I get tired of Indian people carrying around this victim mentality so that everything that happens with ICWA is like some kind of assault on them. I mean, you want to talk about getting out of a self-defeating narrative, that’s a good one to get rid of, the idea that Indians are victims.
Rebecca Nagle: Fiddler declined to speak with me for this podcast so we’re using tape from a documentary called “Blood Memory.” Based on our reporting, Fiddler is how the Brackeens and the Cliffords got connected to the big federal lawsuit. He was the one who made sure this case to strike down ICWA had plaintiffs. Fiddler is Native himself, a citizen of the Turtle Mountain Band of Chippewa Indians. Here he is again from the film Blood Memory:
[clip of Mark Fiddler] People look at me and see a white lawyer. I’ve got blue eyes. So my mother said, well, don’t worry about people think you’re Indian because your blue eyes will save you. And I thought, well why do I need to be saved, what’s that about? So there was some shame growing up being identified as Indian. You know, I really wanted to blend in and one of the unfortunate things, I know racism on a very, very personal level. Kids at school call me chief or they couldn’t figure out what I was.
Rebecca Nagle: After law school, Fiddler was trying to figure out what he wanted to do, and he was concerned with how Native families were being treated by the child welfare system.
[clip of Mark Fiddler] And I was just seeing all these cases, where these Indian families are coming into juvenile court and the kids are being removed from the home.
Rebecca Nagle: And so in the 1990s, Mark helped start a nonprofit to provide those families legal services, the ICWA Law Center.
[clip of Mark Fiddler] And we serve people for free, Indian families throughout Minnesota, and ran that about five years.
Rebecca Nagle: As Mark tells it, he eventually left the ICWA Law Center when he became disillusioned with ICWA because of this theory called attachment. The theory says if you remove a child from caregivers they’ve attached to, you can harm that child permanently.
[clip of Mark Fiddler] Where children are placed and non-Indian homes because they couldn’t find a family that was ready to take them, and then after several years, the children are removed, and that attachment broken. And we damage children to comply with this blanket rule about it always being best placed with family. I don’t think that’s in the tribe’s best interests for our children to be psychologically damaged and then handed over to the custody of the tribe or placed in a tribal home. So you can sort of destroy the child to save the village.
Rebecca Nagle: So Fiddler says because of this change in perspective, he left the ICWA Law Center. But when I talk to former employees and board members, I got a different story. They said he left abruptly and on bad terms after a disagreement with the board about how he had used grant money. Fiddler denies this, but declined to elaborate. It wasn’t immediate, but after a few years, Fiddler started showing up and ICWA cases again. But this time he was representing white families who wanted to adopt Native children. He flipped, and he managed to get some big attention for one of his early cases.
[TV clip] All new Dr. Phil: adoptions gone wrong.
Rebecca Nagle: In 2005, Fiddler’s clients got to tell their story on Dr. Phil. Shannon Smith remembers that Dr. Phil segment. She represented the Native mom in the case and is the director of the ICWA Law Center today.
Shannon Smith: Dr. Phil told her story without her voice, without contacting us. So it was really a story that was told about her instead of anyone letting her tell her story, that she was someone who didn’t care about her child, didn’t love her child, and had abandoned her child—was really the story as the media took off at the time.
Rebecca Nagle: On Dr. Phil, Fiddler’s clients did tell their story, about how they had taken in a Native child, but because of an outdated law, that child was being taken from the only home he had ever known. The case also got a lot of local press. Ultimately, it was settled outside of court and the white family adopted the Native child. Fiddler continued to represent families fighting ICWA and started to gain a national reputation. In the early 2010s, he joined the American Academy of Adoption Attorneys and got pulled into a case that attracted national attention. Seeing Fiddler’s name pop up, worried Smith.
Shannon Smith: And my immediate reaction was to reach out to people I knew who were involved in the case at the time and let them know of what I anticipated, and what I expected based on, and what I had seen in Minnesota, kind of the strategy, heavy media involved in the case in a really prominent way.
Rebecca Nagle: And she was right. That story that did so well in the early years of Fiddler’s career came back. Again, on Dr. Phil:
[TV clip] They adopted a Native American baby, until the tribe stepped in.
[Dr. Phil] They had to turn her over.
[guest on Dr. Phil] How do you explain to a two year old that you might not ever see them again?
[Man on Dr. Phil] You want to commit cultural genocide? Steal a people’s children.
[Dr. Phil] Are you suggesting this child was stolen?
[guest on Dr. Phil] We were told we couldn’t adopt them because we are white and they are Indian.
[guest on Dr. Phil] No, that’s not—
[Dr. Phil] What I hear you saying is what’s best for the tribe, and not what’s best for the child.
[Dr. Phil announcer] Next Dr. Phil.
Rebecca Nagle: it was bizarre to watch, because the story told on Dr. Phil got repeated by CNN, NPR, The Washington Post—you name it.
[TV clip] For two years, the Cappobiancos raised Veronica in their South Carolina home.
[news clip] They had raised her for two years and we’re in the process of adopting her when a South Carolina family court ordered them to hand her over to—
[news clip] The Cappobiancos we’re not giving up the fight for the child they had raised and loved since birth. The case went all the way to the United States Supreme Court.
Rebecca Nagle: This one case ignited a much bigger attack on ICWA, and that’s because it attracted the attention of some very powerful lawyers. Now, the campaign against ICWA isn’t being led by adoption attorneys like Mark Fiddler or Jay McCarthy. It’s being led by some of the most powerful lawyers in the country, lawyers whose practice has nothing to do with adoption or family law or even children, but has a lot to do with something else: the corporations and industries that would make more money if Native rights went away. Next time on This Land:
Lisa Graves: Given some of the players, there is ultimately an oil and gas angle.
Chrissi Nimmo: It literally could call into question all of federal Indian law—so issues like reservation status, land use, water rights, gaming.
Matthew: it’s not about kids. It was never about kids.
Rebecca Nagle: This Land is reported, written and hosted by me: Rebecca Nagle [speaks in Cherokee] citizen of Cherokee Nation. Additional reporting this season from Maddie Stone. Martha Troian, citizen of Obishikokaang Lac Sul First Nation and Amy Westervelt. From Crooked Media, our executive producers are Jon Favreau, Sarah Geismer, Lyra Smith, and Katie Long, with special thanks to Alison Falzetta. From Critical Frequency, our managing producer is Amy Westervelt, our senior producer is Sarah Ventre, and our story editor is Rekha Murthy. Additional editing from Martha Troian and Pauly Denetclaw, who is Dine. Sound design by Lyra Smith, Marc Bush, and Charlotte Landes. Original score composed by Jarod Tate, citizen of Chickasaw Nation. Our outro song is an honor song for adoptees, written and sung by Jerry Dearly, who is Oglala Lakota. Our fact checker is Wudan Yan. Our First Amendment attorney is James Wheaten, founder of the First Amendment Project. Podcast Art by Keli Gonzalez, citizen of Cherokee Nation. Additional reporting from producer Allison Herrera, who is Xolon Salinan. Additional thanks for this episode to Drew Nicholas and the crew behind the documentary Blood Memory. You can find it online at BloodMemory dotcom. Additional thanks to Gary Debele and Kathryn Joyce.
If you’re enjoying the show, please rate, review, and subscribe. It helps more people find us. And please share it with your friends. If you have a tip or information to share related to our reporting, you can do that securely and anonymously through our secure drop. You can find a link in the show notes. To see a timeline of the court cases challenging ICWA, go to our website: ThisLandPodcast dotcom. This season of This Land touches on different forms of family, childhood and racial trauma. If you feel like you could use support, please check our show notes or website, ThisLandPodcast dotcom, to find resources for adoptees and survivors of childhood trauma, abuse, foster care and boarding schools.
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