SALT LAKE CITY — Over the summer, Shari Pena’s 3-month-old foster son chuckled for the first time when his older sister sneezed, kicking off a new family tradition.
The Penas gathered to celebrate the giggle, a milestone in the child’s Navajo culture. They shared a chicken and rice dish in their West Valley home and took a pinch of salt from the baby’s palm, a gesture symbolizing his generosity.
As the federal law governing child welfare cases for Native American children has withstood recent legal challenges in Utah and in other states, the Penas are among those cheering the victories. The Indian Child Welfare Act sets special standards in the adoption and foster care proceedings and gives preference to Native American families — part of an effort by Congress to correct historical bias against them.
“It’s important that these kids stay in native homes,” Pena said. “We understand one another, our past and our ancestors.”
Pena, a citizen of the Cherokee Nation, said certain aspects of Navajo culture mirror her own upbringing in Oklahoma, including a strong focus on family. For newer factors like the first laugh party, she seeks guidance from the child’s biological grandmother and his four foster siblings.
Native American kids in Utah’s system
More than 40 years after the federal law took effect, the child welfare system continues to absorb a disproportionate number of Native American children nationally and in Utah, noted Alisa Lee, Indian child welfare program administrator for the Utah Division of Child and Family Services.
Data provided by Lee’s office shows that roughly 5% of the total 4,659 children in the Utah foster care system are Native American, though census figures indicate just 1% of the state’s population belongs to the demographic group.
”We look at ICWA as restorative justice. And Congress understood they need to take a strong role to make sure the vitality of kids is supported,” Lee said. “We really work with the families and do everything that we can so that child can be returned to home if it’s possible for them.”
If that’s not an option, she added, the agency seeks to place kids with relatives or others in their community.
The effort to keep children in or near their own homes is paramount, said Kathryn Fort, the director of the Indian Law Clinic at Michigan State University.
“We don’t really want stranger foster care. That’s kind of the last goal,” Fort said. “We try to really reduce the trauma to the child that happens when you pull a child from their home.”
Yet there are 129 Native American kids already in the state system, and most will end up in a home that is not a Native American home. Utah has a shortage of licensed Native American foster families — with just 11 statewide, said Stephanie Benally with the Utah Foster Care Foundation.
“It’s slowly going up, but we need more,” Benally said.
Earlier this year, Benally joined the Utah attorney general in defending the federal law in a friend-of-the-court brief filed with the Louisiana-based 5th Circuit Court of Appeals.
The appeals judges ultimately overturned a lower court’s ruling that the law was unconstitutional and racially motivated. The plaintiffs included non-Native American couples in Texas and Minnesota who petitioned to adopt Native American children they had fostered but were denied.
One of the families was “literally torn apart,” their attorney told a federal appeals judge in March.
Benally, an enrolled member of the Najavo Nation, is recruiting potential foster parents with that case top of mind. She travels around the state, reminding them that LGBT families and single parents qualify. They don’t need to be homeowners, either.
Utah Court of Appeals weighs in
In a separate case, the Utah Court of Appeals affirmed the federal Indian Child Welfare Act, but found that a requirement for cultural expertise doesn’t apply to each and every case.
In 2016, therapists who had concerns about the safety of an eastern Utah infant were summoned to a Vernal courtroom to testify in a child welfare proceeding. But 8th District Juvenile Judge Ryan Evershed turned them away and dismissed the case because they were not familiar with the culture of the baby girl’s Ute Mountain Ute Tribe — insight he said the law required.
That cultural perspective is important because it helps courts understand, for example, why it may be normal and appropriate for Native American extended family members to be the main caretakers for children instead of the parents, along with other differences that may be viewed as neglect by those unfamiliar with a tribe’s culture, said Lee, the child welfare administrator.
A court-appointed attorney working in the best interest of the girl in Vernal appealed. The Utah Court of Appeals disagreed with Evershed, finding that the law considers some cases of abuse to be so serious that the cultural knowledge isn’t always needed.
“What it (the appellate court ruling) really is going to do is it’s going to question the regulations,” said Martha Pierce, the girl’s guardian ad-litem. “It’s a different paradigm because the best interest of the child is presumed to be, ‘What is the best interest of the tribe?’
Fort, the Michigan expert on the law, said she often fields questions on the role of the experts. She finds the Utah Court of Appeals decision troubling.
“If there’s severe abuse, you end up getting criminal charges and the parent’s criminally charged and goes to prison for the abuse,” she said. “So I don’t know why you wouldn’t follow the law in all cases. There’s no exception in ICWA for bad facts.”
The court’s decision may lead to the reopening of the Vernal case for the now 3-year-old girl, though her father is in prison and the mother and child live in another state, where there’s been no indication of abuse or neglect, said the mother’s lawyer, Emily Adams.
Mark Flores, an attorney for the Ute Mountain Ute Tribe, called the court’s decision to uphold the law a “win,” but said it may allow judges to potentially minimize the cultural factors and reject the insight.
Carol Verdoia, with the Utah Attorney General’s Office, doesn’t share that concern. She said severe abuse is not a factor in most of the Utah proceedings.
“A large portion of the cases we deal with will require information about tribal cultural and social standards,” she said.