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Inside The Indian Child Welfare Act

February 27, 2005, 10:00 PM by Whitney Beem

We teach our children not to judge based on the color of a person's skin or where they come from. But that's just what a Minnesota judge will have to do when it comes to deciding the future of Christian Hofer. He's the four year old boy who was born to a Native American mother and raised by a white couple. Here's the interview with the man who helped write the the law that's at the heart of this high profile custody battle.

You'd would never know by just looking at four-year-old Christian that he's in the middle of a legal tug-of-war. Juanita Good Bird, Christian's birth mother, signed away her parental rights to him two years ago, stating in the documents Shannon and Bonnie Hofer would be good parents for her son. The problem is even though the termination was done by Good Bird's attorney, it wasn't done in front of a judge. That leaves a loophole for Good Bird to ask for him back.

Abourezk says, "They should have gone through the tribal court and got tribal court permission for adoption, then if later on, the mom said I want to chance my mind tribal court would say 'Too late, you shouldn't be allowed to do that.'"

Jim Abourezk is a former U-S Senator and co-author of the Indian Child Welfare Act, or ICWA, a federal law that he says continues to send a clear message about tribal adoptions. Abourezk says, "It basically says before you can adopt an Indian child, you have to go through the tribal courts will decide whether or not the adoption will go through."

It's a 28-year-old law that's creating new wounds for the Hofers. Abourezk says "The tribe has the right or law to stop adoptions if they see too many Indian children being taken out of the tribe."

Abourezk grew up on the Rosebud reservation. He says research shows removing a child from the reservation can life-long effects.

He says, "They grow up thinking they are white. Then they go to school somewhere and get hit with the fact they are Indian. There is racism involved."

While some might question the quality of reservation life for a child like Christian, Abourezk says research has found the loss of his culture could hurt even more.

Abourezk says, "We found also that even if a mother is an alcoholic and an Indian mother that the child is probably better off with that mother, than being taken away and put into a white culture that they are not used to."

That said, he's also quick to add that while ICWA doesn't prohibit the Hofers from adopting Christian, it does say the state should exhaust all efforts to place the child in a proper Native American home first. Abourezk says, "The whole thing is a tragedy on both sides, I hope the courts are wise on determining their decision."

He's also grateful it's a decision he doesn't have to make. "The mother changed her mind and wants him back the parents have grown to love this child and had him for two years, the only home he ever really knew."

Both sides are due back in a Minnesota courtroom on March 14th, where the judge is being asked to reconsider his earlier decision not to terminate Good Bird's rights. If the judge does not change his mind, Christian could go back to his birth mom. The four-year-old is currently living with the Hofers.

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