[Congressional Record Volume 142, Number 58 (Wednesday, May 1, 1996)]
[House]
[Pages H4367-H4370]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ICWA SPELLS HEARTBREAK FOR FAMILY IN OKLAHOMA
The SPEAKER pro tempore. Under a previous order of the House, the
gentlewoman from Ohio [Ms. Pryce] is recognized for 5 minutes.
Ms. PRYCE. Mr. Speaker, I rise today to address the Indian Child
Welfare Act, to explain that as it stands today, it has struck tragedy
in the hearts of countless children, birth parents, and adoptive
families throughout this entire country.
The Indian Child Welfare Act, or ICWA as it is called, was intended
to stop State court abuse of Native American children in involuntary
placements. In its current form, ICWA is a factor in every single
adoption in this
[[Page H4368]]
country, because it is nearly impossible to determine what child may be
part Indian due to some remote part of its heritage.
I have already recounted several tragic incidences due to the
misapplication of ICWA on this House floor. Today I want to tell the
Members about an especially sad story that took place in Oklahoma. A
couple, Rick and Kathy Clarke, who were seeking to adopt, were notified
that they had been selected for possible placement and home study by a
tribal worker from the birth mother's tribe. The home study was
conducted by the manager of the tribe's division of children and family
services.
After conducting the home study, the tribal manager told the
prospective parents that ICWA could be waived, and that the tribe had
only the best interests of the child at heart. He further suggested
that the child be enrolled in the tribe and be allowed to explore his
or her cultural heritage.
The couple enthusiastically agreed to this suggestion. Rick and Kathy
Clarke were with Shonna Bear, the birth mother, when the child was
born. It was a joyous and special occasion. Little did they know that
because of the misapplication if ICWA, the little boy they already
loved so much would be taken from them.
Mr. Speaker, the court ordered Rick and Kathy to turn the child over
to the tribe. Tribe officials, using ICWA, succeeded in securing a
relinquishment order, even after assuring the Clarkes that they would
not. Mr. Speaker, the sad irony is that Shonna Bear wanted her baby to
have a loving and stable home with these adoptive parents. She, a
loving and courageous birth mother who chose life for her baby instead
of abortion, had a right to feel comfortable and confident that she, in
her judgment as the birth mother, had made the right decision for her
baby. But her decision was overturned. The adoption plan she had so
carefully and lovingly made was overturned by the court.
ICWA was never intended to cause such pain and anguish for potential
parents, birth parents, and children. Rick Clarke, the adoptive father,
did not enter into this adoption carelessly or without the utmost due
diligence to the law that applied. He is an Oklahoma judge, very well-
versed in the law and its many pitfalls.
Let me quote from the letter that Rick sent to me:
We had less than an hour and a half to say good-bye to our
baby. I will never forget Kathy sitting in Jeffrey's room,
holding him and saying, ``We are never going to see him
again, are we?'' The pain in Kathy's eyes tortures me even
now.
He goes on to say:
For weeks we were totally depressed. We cried every day.
Even with the help of our pastor, we needed the help of other
professionals to pull us out of our tailspin. Even now,
months later, when we think of him we get so upset. When we
think if adopting another child, we get fearful of this type
of thing happening again.
Mr. Speaker, that is exactly the point of this legislation. Surely we
want to correct our legislative overbreadth so these individual
tragedies do not occur again to loving, well-meaning families, but more
importantly, we must realize that this correction will be one small
step this Congress can take to encourage adoption in our Nation, rather
than foster impediments to it.
How many children languish in foster homes and are shuffled about
from one setting to the next, year after year after year, because
otherwise willing and wanting families are afraid to go through what
might end up being a heartbreaking experience? I will tell the Members
how many: 500,000 children are awaiting an adoptive home. We have a
chance to remove yet another one of the roadblocks to adoption, that
fear of being the next front page story.
Let me read one more line of Judge Clarke's letter:
Because we committed all our resources to this adoption,
after having the approval of the tribe, we are effectively
prevented from attempting to adopt again.
The minor changes I have offered to the Indian Child Welfare Act go a
long way towards avoiding such tragedies, while maintaining the intent
of the act. Rick and Kathy will never see the little boy again that
they love so much, but we can make that right, Mr. Speaker. Rick Clarke
is absolutely right: This fight is for the children. I urge my
colleagues to join me by supporting the adoption legislation on the
floor next week.
Mr. Speaker, I include for the Record the letter from Rick Clarke.
The letter referred to follows:
Rick and Kathy Clarke,
Tulsa, OK, April 25, 1996.
Hon. Deborah Pryce,
U.S. Representative,
Columbus, OH.
Dear Congresswoman Pryce: Enclosed you will find a summary
of what my wife and I experienced dealing with one Indian
tribe and the Indian Child Welfare Act. Also, I am sending
along a copy of the letter the tribal worker sent us when
they agreed to waive ICWA and place Jeffrey in our home. I
send this information to you at Nichole's request.
Nichole and I talked earlier today about your goals with
the present legislation pending before Congress. She was very
informative, professional and still compassionate concerning
our ordeal. Please thank her again for me.
As you will see from our story, the effect of the ICWA is
sometimes devastating to not only potential adoptive parents'
lives, but even more so for the children it imprisons. Kathy
and I wholeheartedly support your efforts to limit the ICWA's
abusive and disastrous results. You are fighting a good fight
for the sake of innocent children all over this nation. May
God bless you in your battle.
We stand ready to offer any assistance you need in winning
this fight. I know our story and pain don't even begin to
compare to those of others, but we will do what we can to
help. Please let us know how we can assist.
Sincerely,
Rick Clarke.
early november
John O'Connor called and said that he had someone who
wanted to see a biography on us. We revised the one that we
have previously given out and sent it to him. We also found
out at this time that the baby's father was part Indian. We
were not very optimistic because Indian tribes seldom will
approve non-Indian homes for placement. However, since we
thought they could waive that requirement, we went ahead and
tried.
Kathy has said that if we don't have a baby by the end of
the year, she wanted to stop looking for a baby and try to
get an older child. With this possibility, we both agree to
try.
december
John called on 12/16/94 and told Rick that the tribal
worker had agreed to do a homestudy of us. At that point, we
had given up hope because we had not heard anything for a
while. We assumed that since we were not Indian, the tribe
had declined. However, even knowing we were not Indians, they
agreed to see us.
On 12/17/94 Scott Johnson, Manager of the Division of
Children & Family Services for the Muscogee (Creek) Nation,
came to our home for the purpose of conducting a homestudy.
Mr. Johnson spent close to three hours in our home talking to
us and asking us questions. He informed us that his goal, and
that of the tribe, was to make sure that the child's best
interests were served by the adoption.
Mr. Johnson told us that the primary reason for the strict
requirements on adoption of Indian children was to make sure
that the Indian children became members of the tribe and to
avoid the wholesale baby-brokering of Creek children. We made
it clear to him that we were concerned about not being Indian
and he told us that the preferences in the ICWA could be
waived by the tribe when they thought it would be best for
the child. He said that most tribal authorities were most
concerned about keeping the numbers of enrolled members
high--it somehow effected their financial support. The only
conditions he asked us to agree to were to enroll the baby
with the Creek Nation and to allow the child to freely
explore his cultural heritage if he wanted to do so. We
joyfully agreed to those conditions as we both thought they
would be in a child's best interest.
As we talked with Mr. Johnson, he made it clear to us that
he knew the Bear family. He said that the father of this
child, Freddie Bear, had several children the tribe knew
about that he was not providing for. His general impression
of the whole family was not very favorable. He said he was
happy that this child would have a chance to be raised in a
better environment than would his siblings and relatives.
As Mr. Johnson left our home, he commented that he rarely
had been in an adoptive home where there was as much peace
and love as he felt in ours. With that, he informed us that
he would approve our home as an adoptive placement for this
baby and that the tribe would not intervene.
Needless to say, we got very excited. We went out almost
immediately and began to buy baby stuff. We still didn't
unwrap many of the items because we had such a long road
ahead of us.
On 12/21/94, we met with John in his office at 4:30. He
said that things were looking very good. He told us at that
point we could back out of the process and there would be no
legal expense to us since everything up to then was somewhat
preliminary to even considering this baby. However, since the
tribe was the only party that was previously unknown and they
were now with and for us, there appeared to be nothing
standing in the
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way of a successful adoption. Based on that, we agreed to go
full steam ahead and committed to adopting this baby and
paying all expenses to accomplish that goal.
We thought that the baby might be born around Christmas due
to the mother having some complications. It was not meant to
be, however.
January
Because of a lack of communication and possibly stress on
the mother, we though that the adoption may be off in early
January. Shonna's father did not think we were paying enough
of her bills. We, however, wanted to avoid the appearance of
baby-buying. We agreed to meet with the mother on 1/15/95,
and were pleasantly surprised. She restated her commitment to
having us adopt the baby. She also told us that we were
really the only couple she seriously considered. She read
several biographies and liked ours the best by far.
On 1/31/95, Shonna went he OU Medical Clinic and is told
that the doctor want to induce labor. As soon as we find out,
we went to the hospital and talk to her and then wait for the
big event. At around midnight, we went home to let the dog
out. We were only home for a few minutes when we got the call
saying to return to the hospital immediately--the baby was on
his way.
As we got off the elevator, we met John O'Connor and he
congratulated us on the birth of a son. Jeffrey Adam was born
at 12:53 A.M. on 2/1/95 and weighed 7 lbs. 20 ozs. He was 21
inches long. Without a doubt, he was and is a perfect baby.
January 1, 1995
We stayed with Jeffrey the nursery until around 6:00 A.M.
Kathy got a bracelet so we could visit and take him out of
the nursery. Rick went to work, but met Kathy and her mom at
the hospital at noon. We went in the room with Jeffrey and
the mother and had a wonderful visit.
We went back up to the hospital after work that evening.
Because there was a problem with the bracelet, we could only
take Jeffrey to another room if a nurse went with us. While
upsetting, we agreed because we just wanted to spend time
with our baby boy.
February 2, 1995
Again, Kathy and Rick met at the hospital at noon to visit
Jeff. Rick's court guard and some friends were there also.
Jeff was not in the nursery, so we thought something was
wrong. He was in Shonna's room with her. She told us that her
mother-in-law and other family members were up and wanted to
see the baby. We think they had seen him and that was the
reason why he was in her room. Kathy and her mom stayed up at
the hospital for a long time after Rick went back to work.
Then they went shopping to get Jeffrey a ``going home
outfit.''
When we went back that evening, everything got much worse.
We know she had been moved to a different room and went
directly to the new room. When we passed the nurses desk, we
saw an Indian woman and several younger Indians asking for
someone's room number and being told she (later found out to
be Shonna) was not at the hospital. The would-be visitors
were not happy.
Shonna told us that the family was looking for her. Because
she did not want to see them, she had been listed in the
hospital directory as not a resident. Her door was even
marked ``No admittance. Check at nurse's desk.'' Jeffrey was
in her room at that time. We sat and held him for a short
time.
Then, a nurse came in the room and told us ``I have to take
the baby to the nursery.'' She would not tell us why so we
would not let her take him. She returned a few minutes later
and told us she had to sit in the room with us if he could
not go to the nursery. We eventually found out that there
were three lighthorsemen (Creek Nation tribal police) in the
lobby with a tribal court pick-up order for Jeffrey. This
order, I understand, requested that the child be placed in
the custody of the manager of the Family Services Division of
the Creek Nation That person was Scott Johnson, the same
person that had previously approved us as adoptive parents
for Jeffrey. When I walked through the lobby, I saw three
Indian men sitting in the waiting room--one dressed in a
uniform with a gun and the other two in plain clothes with
guns.
At this point in time, Jeffrey had not been released by his
pediatrician to leave the hospital--any removal would have to
have been ``Against Medical Advice.'' The hospital staff had
called the ``risk management'' department who eventually got
their lawyer involved. The hospital lawyer showed up at the
hospital late in the evening. He told the lighthosemen that
they had no authority to be on the hospital property,
threatened them with trespassing and they finally left the
hospital with the threat to return with a different order.
Also, apparently the date on the order was incorrect.
Needless to say, during this time we were extremely upset.
We were calling everybody we knew that might be able to help.
This included our attorneys, Shonna's attorney, tribal
members involved with children's services, and even tried to
get a hold of Scott Johnson. All of our efforts proved
futile. Had it not been for the hospital attorney, we would
have lost Jeffrey right then.
After they left, we stayed at the hospital until Shonna
checked out at around 2:00 A.M. on 2/3/95. Jeffrey was
returned to the nursery.
2/3/95
We met Shonna at the hospital around 9:00 A.M. with the
intent to take him home with us. Because of the tribe's
actions and the cloud of uncertainty it caused, we decided
not to file the adoption petition that morning. However,
because Shonna and we were still in agreement about us
adopting Jeffrey, we decided to take him home with us. The
hospital required that Shonna check him out and leave with
him. We immediately took physical custody of him after she
left the hospital with him. That was one of the happiest
moments we have ever experienced.
Within 20-30 minutes after we got home with our new baby, I
received a call from people at my work. They told me that Mr.
Charles Tripp, Assistant Attorney General with the Creek
Nation, was at the Juvenile Bureau asking Judge Crewson to
sign a pick-up order for Jeffrey. It is my understanding that
the reason for this was because the mother agreed to give her
baby up for adoption, she was not a fit mother and the child
was at risk because of that.
Our extreme joy was immediately turned into utter terror.
Because of our love and concern for Jeffrey, we felt it was
in his best interest to return to his mother's physical
custody as opposed to the possibility of being placed in a
shelter for ``deprived children.'' We know that there was a
strong possibility that she would get attached to this lovely
baby boy. Also, her two sons had been told all along that the
baby would not be coming home with her, but she was having
him for someone else. This had to confuse them, too.
We called Shonna and told her that the tribe was still
trying to remove him from our care and our fear of Jeff going
to a shelter. We all agree that it would be close to
impossible for the tribe to remove him from her custody and
to meet in order to return Jeffrey to Shonna temporarily.
While Kathy takes Jeffrey to Shonna, Rick is on the phone
with Judge Sellers (acting as presiding Judge while Judge
Winslow was out of the courthouse.) Mr. Tripp was before
Judge Sellers asking him for the pick-up order since Judge
Crewson had recused. After Mr. Tripp talked to the tribal
judge, there is an agreement to allow Jeffrey to stay in our
home, without tribal interference, until a full hearing could
be held in front of Judge Winslow. That hearing was to be set
on 2/14/95. However, by the time the agreement was made,
Kathy had already returned Jeffrey to Shonna.
The rest of that day we spent crying our hearts out. Not
only for ourselves, but also for Jeffrey. He had to go back
to his mom who could not afford or want to have him. He was
the lifetime victim.
2/4/95
Early on Saturday we called Shonna to see if everything was
all right. Since she was not prepared to take him home, we
were concerned for everybody. She seemed elated and relieved
to hear from us. She said she could not handle what was going
on and still wanted us to adopt Jeffrey. She even suggested
that we go out of state and do the adoption and lie about who
the father was and say the child was not Indian. We obviously
could not do that, but we told her we could come and get him
and keep him until the court date.
Once again, we were overjoyed. Our hope that the Creek
Nation would do the right thing for this child took over. We
met Shonna and took physical custody of Jeffrey early in the
afternoon. Even though we were just ``baby-sitters'' at that
point, we felt like a family.
2/4/95 to 2/11/95
Kathy has taken off work to spend all of her time to be
with Jeffrey. We take him to church on Sunday and introduce
him as our baby. We take him to friends homes, bring him to
my workplace, and everywhere else we go normally. We are a
family.
2/11/95
As we were eating breakfast, Shonna called and asked if she
could see Jeffrey to say good-bye. Because of all the
problems the tribe caused, she did not have a chance to do
that. As Rick talked to her, it became obvious that she was
probably changing her mind. The time she had to spend with
him due to the tribe's interference forced her to bond with
him. We do not believe that she did this maliciously or with
the intent to just get some bills paid. Of interest, is that
even now the father has not seen the baby nor expressed any
interest in Jeffrey.
We had less than an hour and half to say good-bye to our
baby. I will never forget Kathy sitting in Jeffrey's room,
holding him and saying ``We are never going to see him again,
are we?'' The pain in her eyes tortures me even now.
I met Shonna for the last time with only Jeffrey--Kathy
could not bear having to hand him over to her. We gave her
almost all of the clothes and toys we had bought for him. We
knew she did not have anything to take care of him. We wanted
Jeffrey to be happy and safe and have plenty of things he
needed. After I gave Jeffrey to Shonna I drove away with a
feeling of total loss. I had never wanted something to happen
more nor experienced so much pain when it didn't.
For weeks we both were totally depressed. We cried every
day when we thought of Jeffrey. Even with the help of our
pastor, we almost needed the help of other professionals to
pull out of our tailspin. Gradually, our pain subsided.
However, even seven months later, when we think of him we get
upset. Also, when we even think about adopting any other
child we get fearful of this type of thing happening again.
That is in addition to the fact that we have no money to even
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begin the adoption process since we spent so much on the
failed attempt.
After Jeffrey's return to his mother
We have been told that after this mess happened, Scott
Johnson was called before tribal authorities and told to
change his ways concerning his representation of the tribe's
position on adoption. This is born out by his behavior.
During the time we had Jeffrey in our home, Mr. Johnson
called our home and talked to Kathy. He told her we were
still the best place for Jeffrey to be and he still would
continue to fight for that to happen. He had not, at that
time, changed his opinion at all.
After his meeting with tribal authorities, we are told that
he now says that he never promised us that the tribe would
consider us as an adoptive placement for the child and that
the tribe would follow placement guidelines as it always
does, without exception. Obviously, his letter is clear on
this point.
Both of us, during separate conversations with Mr. Johnson,
expressed our concern over him personally and the possible
negative impact he may suffer for his bold and appropriate
position for the best interests of this child. He apparently
has changed his position.
Two days after the article about the failed adoption was in
the May 28, 1995 Tulsa World, Shelly S. Crow, Second Chief of
the Muscogee (Creek) Nation called Rick at the office and
wanted to meet. Within a week after that, Ms. Crow showed up
at the courthouse and met with him. She informed Rick that
she was very disturbed by the article and wanted to know what
she could do to make everything right. She said something
like what happened to us should never happen and that the
tribe was concerned about Indian children. She also said that
sometimes the best thing for Indian children was to be placed
outside an Indian family, ``as in your case.''
Ms. Crow informed me that she was contacted by the paternal
grandmother and told of the circumstances. She proceeded to
write letters to put a stop to the adoption and insisted that
the tribe intervene just as it eventually did. I asked her if
she was aware that Mr. Johnson had approved our home when she
decided to intervene and she said she did not know that nor
had she seen the letter. She was also surprised to learn that
the paternal grandmother had seven other grandchildren living
with her on a permanent basis and that all were being
supported by state and tribal assistance in substandard
housing. She acted without even considering the best
interests of Jeffrey.
Since Ms. Crow felt so guilty about her actions, she was
very free with even more information. She went on to tell me
that after Mr. Johnson changed his ``official'' position, he
got promoted to a better/easier job with an extra $3,000 a
year salary increase. She believed that Mr. Johnson had been
reprimanded at least four times in recent years by the tribe
for various infractions while employed by the tribe.
Her last comment about Mr. Johnson was that his father
worked somewhere in the federal government, possibly for the
Department of Housing and Urban Development. Because of this,
and the fact that if the tribe did anything to Mr. Johnson
the federal government may cut funding, Ms. Crow thought the
tribe would put up with him no matter what he did wrong.
Conclusion
The Creek Nation should not be allowed to ruin so many
innocent children by their selfish, destructive conduct. Not
only have they shattered our lives, after encouraging us to
go forward with this adoption, but they have sentenced
Jeffrey to live a life in an environment where he was not
wanted and could not be provided for adequately--They have
not only destroyed our lives, but, more importantly,
Jeffrey's.
In addition, because we committed all of our resources to
this adoption, only after getting the approval by the tribe,
we were effectively prevented from attempting to adopt again
for some time.
The Creek Nation should suffer for the pain they have
caused.
____
Muscogee (Creek) Nation
Okmulgee, OK, December 29, 1994.
Mr. John O'Conner,
Newton and O'Conner Law Firm,
Tulsa, OK.
Dear Mr. O'Conner. A homestudy was conducted on the home of
Richard Randal and Kathy Jean Clarke for the purpose of
placing the unborn child of Ms. Shanon Boar whose spouse and
father of the said child is an enrolled member of the
Muscogee (Creek) Nation. The home was found to be of
extraordinary quality. Mr. and Mrs. Clarke are people of
integrity with high morals and quality values. Seldom have I
met a couple with such character and desire to be good
parents. Rarely do I have the opportunity to enthusiastically
recommend a home for placement without reservation. In this
instance however, I am delighted to approve this home for
placement.
As a duly appointed Officer of the Court and representative
of the Muscogee (Creek) Nation Division of Children and
Family Services we accept the home of Mr. and Mrs. Clarke as
suitable placement for the unborn child of Ms. Shanon Bear.
The Muscogee (Creek) Nation declines to intervene in the
adoptive placement of said child to the Clarke family.
However, if an alternate placement is made, the Muscogee
(Creek) Nation reserves the right to intervene at a later
time.
Scott A. Johnson,
Division Manager.
____________________