FARMINGTON, N.M. » In a small, brightly decorated room at the Childhaven youth shelter, a group of Navajo children played a quiet game of Monopoly, their faces registering the occasional faint smile. Abandoned, neglected or worse, the children have been living here, on the edge of their tribe’s reservation, and most have been waiting for months until the state can find foster homes or relatives where it can send them.
In the often wrenching world of foster care, the plight of American Indian children is especially fraught. Under the Indian Child Welfare Act of 1978, local agencies must try to place Indian children with Indian families whenever possible, and tribes may intervene in certain custody proceedings.
Congress passed the law after generations of Indian children were wrested from their homes and placed in non-Indian foster facilities and boarding schools. The law’s supporters say it has worked in many instances — allowing Indian children to remain connected to their heritage, even when families fall apart.
But a chronic shortage of licensed Indian foster families in states like New Mexico, coupled with the poverty and substance abuse endemic to American Indian communities, has also made it challenging to apply.
In Bernalillo County, for instance, there are 65 Indian children in state custody but only five Indian foster homes, prompting Gov. Susana Martinez to publicly appeal for more families last March.
"Having enough families to meet the intent of the Indian Child Welfare Act is a big problem," said Jared Rounsville, the protective services director for New Mexico’s Children, Youth and Families Department. "Which ends up resulting in Native children at times being placed with non-Native families. And then often times they are adopted by non-Native families."
Recently, the law’s interpretation has been tested in a case that will be heard by the United States Supreme Court this year and is being watched closely by child welfare experts.
In that case, a family court judge ordered a white South Carolina couple to turn over a 27-month-old girl they had raised since birth to her Indian biological father.
The father, a member of the Cherokee tribe, was estranged from the mother and had relinquished rights to the child. He said he was unaware his daughter would be put up for adoption and sought custody when he found out, four months after she was born.
Lawyers for the couple said the child, known as Baby Veronica, forged a deep bond with her adoptive parents, who were present at her birth.
The South Carolina Supreme Court upheld the decision after the couple appealed. The court ruled that the birth mother made some efforts to conceal the father’s Cherokee identity during the adoption and that federal law required Veronica to remain with her father, whom the court found had created a safe, loving home.
In a 3-to-2 ruling, the court said it had reached its decision "with a heavy heart," conceding that the adoptive couple, Matt and Melanie Capobianco, were ideal, loving parents.
Last year, supporters of the Capobiancos delivered a petition signed by more than 20,000 people to South Carolina lawmakers, urging them to revisit the law.
But its proponents say the case illustrates, with heartbreaking consequences, what happens when information about a child’s tribal status is withheld.
"What is at stake is whether or not we not we go back to the days where deception and coercion are the norm in adoptions," said Terry L. Cross, the executive director of the National Indian Child Welfare Association.
According to the child welfare group, Indian children are still overrepresented in foster care at twice their rate in the general population — evidence, Cross said, that child welfare agencies were still too quick to pull Indian children from their homes.
Less than 2 percent of Minnesota children are Indian, for instance, but they make up 15 percent of the foster care system, according to the group. In Montana, the group found that Indian children make up about 9 percent of the population but represent 37 percent of foster care children.
Cross said that a child’s welfare was always paramount, and that the ideal situation was to place the child with relatives or a stable foster family — even a non-Indian family — so long as a tribal bond was emphasized.
While the current law was imperfect, he said, it sought to balance the rights of the child, the birth parents and the interests of the tribe, which needed to protect its members.
Mark Fiddler, one of the lawyers acting as counsel for the Capobiancos, would not comment on the case. While he said the act was well intentioned, he contended that its application had become misguided, where a stable family environment was too often eclipsed by a desire to keep children linked to their tribe.
An enrolled member of the Turtle Mountain Band of Chippewa Indians, Fiddler once supported the law as a Minneapolis public defender.
But he changed his mind after a case from the 1990s, during which he opposed the adoption of an Indian girl, Sierra Goodman, by her white foster parents, Eugene and Carol Campbell.
After Sierra’s tribe successfully challenged the adoption, she was taken to live with Indian relatives despite her pleas to stay. According to accounts of the case in The Minneapolis Star Tribune, she lived in more than 20 foster homes and became deeply troubled, aiding her boyfriend in a failed attempt to murder the Campbells.
The Campbells eventually adopted her as an adult, after she spent time in a juvenile treatment facility.
"After many years of handling these cases, I got to the point where I became much more focused on the child’s developmental needs than the child’s cultural needs," Fiddler said. "I’m not saying there aren’t some issues of loss when a child is placed out of their culture. But those are more remediable than the profound psychological damage we risk by moving them from a stable family."
But for every failed case, there are dozens that end well, said Therese Yanan, a director of the Native American Disability Law Center in New Mexico.
The bond between child and tribe, Yanan said, was vital to giving Indian children a clear identity.
"It’s difficult for non-Natives to fully understand the connection individuals have with their Native community," she said.
Brenda Riggs-Valle, who is Navajo, has been fostering mostly Indian children in Farmington while raising her own two children as a single mother.
She said there was a shared experience between Indian foster families and Indian children that creates a comfortable foster environment. But she worries about might happen when they leave her care.
"What we give them is a glimpse of happiness," Riggs-Valle said. "And when they go back, they are going to have to be strong."