Parental Ratification: Legal Manifestations of Cultural Authenticity in Cross-Racial Adoption

American Indian Law Review Volume 28 | Number 1 1-1-2003 Parental Ratification: Legal Manifestations of Cultural Authenticity in Cross-Racial Adoption Kevin Noble Maillard Syracuse University College of Law Follow this and additional works at: https://digitalcommons.law.ou.edu/ailr Part of the Family Law Commons, and the Indian and Aboriginal Law Commons Recommended Citation Kevin N. Maillard, Parental Ratification: Legal Manifestations of Cultural Authenticity in Cross-Racial Adoption, 28 Am. Indian L. Rev. 107 (2003), https://digitalcommons.law.ou.edu/ailr/vol28/iss1/3 This Article is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact . PARENTAL RATIFICATION: LEGAL MANIFESTATIONS OF CULTURAL AUTHENTICITY IN CROSS-RACIAL ADOPTION Kevin Noble Maillard L Introduction The question "Who is Indian?" marks a standard subject of academic inquiry, but to ask "who decides and how" is much more interesting. In Indian country, state and tribal standards for determining "Indian" may belie personal and private definitions of identity. While I believe that identity should be selfdefined, the unavoidable truth persists that juridical claims cut across subjective beliefs to establish a legal standard for determining identity. As is historically true of legal determinations of race, no single standard of membership exists that provides a clear boundary of belonging that uniformly adjudicates who belongs and who does not. Presently, the closest answer lies within the courts. Judges may exert a great deal of discretion in determining the racial affiliation of the parties, especially in situations where that affiliation stands as the determinative factor in litigation. The substantive reasoning of each case differs in its rationale and logicality, yet this remains an acceptable obligation of the judge, as a supposedly neutral third-party observer, to decide. The specter of authenticity exists as a perennial foe in the daily battles of life experienced by American racial minorities. In the face of a general consciousness, which usually means White, minorities run against a dominant image of what their group is perceived to embody. This creates a standardizing point against which people of color are measured. These perceptions may be spoken or silent, believable or absurd, but their existence in our collective social consciousness testifies to their powerful influence on perceptions of racial minorities. Whether these are stereotypes, fictions, or truths, the isolated subject relates to an aggregate theme. The proximity of part to whole engenders a hierarchy of authenticity that bolsters or palliates the subject's connection to the group. The methods of legitimization for legal consideration as a Native American are neither based solely on considerations of race or culture, but both, * J.D., University of Pennsylvania; Ph.D. Candidate, University of Michigan; B.A., Duke University. Member, Seminole Nation of Oklahoma. I would like to thank Professor Barbara Bennett Woodhouse and Licha Nyiendo for their criticisms and comments. Published by University of Oklahoma College of Law Digital Commons, 2003 AMERICAN INDIAN LAW REVIEW [Vol. 28 depending on the jurisdiction. Following the standards established by the federal government in the Indian Child Welfare Act (ICWA),' state courts have held that being Native entails the minimal requirements of proof of membership in a federally recognized Indian tribe.2 In other states, mere political membership is not enough.' In order to prove oneself as Indian, a litigant-parent must present evidence of active engagement in seemingly Indian activities, which are designated in the mind of the presiding judge.' The primary problem with the present scheme is that the subjective and personal tribal considerations of membership fail to achieve the level of recognition they deserve outside of Indian country. This Article aims to critique the practice of judicially created definitions of "Indian" in a hotly contested and controversial area of law: transracial adoption (TRA).' It is my belief that the evaluation of potential parents as appropriate, qualified, and situated persons to adopt and care for children of color stands as a juridical ratification of ethnic authenticity that privileges those who accede to the judicially created norm while punishing those who depart form it. At the heart of the controversy of transracial adoption is the question of what type of ethnic values can the differently situated parent 1. 25 U.S.C. § 1903(3) (2000). 2. Under the Indian Child Welfare Act, the court will assume that tribal enrollment is sufficient to trigger the Act, regardless of the person's racial, social, cultural, and spiritual affiliations. See In re Alicia S., 76 Cal. Rptr. 2d 121, 128 (Cal. Ct. App. 1998) (holding that tribal membership alone is satisfactory to trigger ICWA). But in other cases, the lack of formal tribal enrollment is not a bar to legal relief. See Michael G. v. Superior Court of San Diego County, 2002 Ca. App. LEXIS 3473, 7-8 (holding that a parent's failure to report Indian heritage in a child custody proceeding does not forfeit tribal jurisdiction). 3. These states require proof that, in addition to having Indian blood, the person also thinks of herself as an Indian. This is evinced in various practices such as her political affiliations, style of dress, knowledge of tribal language, etc. See generally In re Adoption of Baby Boy L., 643 P.2d 168 (Kan. 1982) (upholding a requirement of substantial tribal affiliation to enact ICWA). 4. One judge wrote a detailed description of appropriate Indian activities that would demonstrate substantial connections to tribal activities. See In re Bridget R., 49 Cal. Rptr. 2d 507, 531 (Cal. Ct. App. 1996) (establishing a rubric for participation in tribal activities that testify to a tribal member's involvement with the tribe). See id. at 528. 5. In conducting research for this paper, I noticed differing applications of terminology for adoptions involving parents of one race and a child of another. The term "transracial adoption" is generally applied to cases involving Black children, while "international adoption" generally applies to cases involving Latino/a and Asian children from countries other than the United States. Regarding Indian children, "transracial adoption" is generally downplayed, perhaps because of the greater concern with culture rather than race alone. I will go into further detail about the these issues below. https://digitalcommons.law.ou.edu/ailr/vol28/iss1/3 No. 1) PARENTAL RATIFICATION impart upon the child, and whether that parent possesses the cultural consciousness needed by the child to grow up with a healthy racial identity. As Profe (...truncated)