[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

[[Page H4369]]

     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

[[Page H4370]]

     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.

                          ____________________