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Drawing blood

"Drawing blood" Continued...

Issue: "Meltdown," April 22, 2006

"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.

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