Extraction of Personal Data: A New Form of Colonialism or Continuation of a Colonial Practice? Adult Native American Adoptees Resist Assimilation and Rebuild Erased Identities

American Indian Law Journal American Indian Law Journal

Volume 10 Issue 2 Article 4

6-1-2022

Extraction of Personal Data: A New Form of Colonialism or Extraction of Personal Data: A New Form of Colonialism or

Continuation of a Colonial Practice? Adult Native American Continuation of a Colonial Practice? Adult Native American

Adoptees Resist Assimilation and Rebuild Erased Identities Adoptees Resist Assimilation and Rebuild Erased Identities

Leonard Mukosi

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Mukosi, Leonard (2022) "Extraction of Personal Data: A New Form of Colonialism or Continuation of a

Colonial Practice? Adult Native American Adoptees Resist Assimilation and Rebuild Erased Identities,"

American Indian Law Journal

: Vol. 10: Iss. 2, Article 4.

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EXTRACTION OF PERSONAL DATA A “NEW” FORM OF COLONIALISM OR

CONTINUATION OF A COLONIAL PRACTICE? ADULT NATIVE AMERICAN

ADOPTEES RESIST ASSIMILATION AND REBUILD ERASED IDENTITIES.

By Leonard Mukosi

TABLE OF CONTENTS

Introduction .......................................................................................................... 3

II.

What is Data Colonialism and Why it Matters ................................................... 3

A. How Data Colonialism Perpetuates Colonial Power Dynamics ................ 4

B. Comparison of Data Colonialism and Historical Colonialism ................... 5

C. How Data Colonialism Impacts Indigenous Peoples .................................. 6

D. The Differences Between Data Colonialism and Historic Colonialism ...... 7

III.

The Adoption, Erasure, and Assault of Native Identity ..................................... 8

A. The Forgotten Indian Child ........................................................................ 11

B. The Destitute Indian Family ....................................................................... 11

C. The Unmarried Indian Mother .................................................................. 12

IV.

Accessing Adoption Records in the United States. ......................................... 13

A. ICWA and Adult Indigenous Adoptees’ Access to Adoption Records ....... 19

B. Pre-ICWA Struggles for Indigenous Adoptee’s to Access Records .......... 21

C. ICWA Offers Limited Reasons for Accessing Adoption Records ............... 24

International Law and Access to Adoption

Records

......................................... 27

VI.

Adult Native Adoptees need to Reconnect for “Non-ICWA” Reasons .......... 28

A. Psychological Factors ............................................................................... 31

B. Existential Factors ..................................................................................... 32

C. Sociological

Factors

.................................................................................. 33

VII.

Indigenous Data Sovereignty and Resistance to Assimilation ....................... 36

A. Personal Narratives from the Survivors of the IAP ................................... 38

VIII.

Reconciling the Individual and Collective Through Reconnection…………45

A. Scholarly Approaches to Individual vs. Collective Indigenous Interests .. 47

IX.

Conclusion ....................................................................................................... 51

I. INTRODUCTION

A new form of colonialism, distinctive of the twenty-first century is reported to be taking

Dr. Leonard Mukosi is a Post-Doctoral Scholar in the Research on Violent Victimization Lab within the School of

Criminology and Criminal Justice at Arizona State University. He Graduated with an SJD in Indigenous Peoples Law

and Policy from James E Roger College of Law at University of Arizona. This paper is a chapter from his dissertation

titled; Indigenous Data Sovereignty: Origins and Implications for the United Nations Declaration on the Rights of

Indigenous Peoples. The author would like to extend his gratitude to Dr. Stephanie Russo, Professor Robert

Williams and Dillon Dobson for their support throughout the research and writing of this chapter. Specifically, the

author would also like to thank Joseph Alkhedairy, a 3L at Seattle University School of Law, who kindly reviewed

this manuscript and provided valuable suggestions and comments.

shape: data colonialism. Data colonialism interprets the contemporary capture and processing of

personal data by governments or data corporations as an evolution of historic colonialism.

Scholars behind the movement to resist ‘new data colonialism’ do not juxtapose the contents,

form, and physical violence which characterized historic colonialism with the contemporary

practices of appropriating personal data. Instead, the proponents of data colonialism merely refer

to historic colonialism in the context of its function within the development of economies on a

global scale. The overall argument made in this paper is that, to properly construe contemporary

data relations through the lens of colonialism, it is worth revisiting and examining the contents of

historical colonialism as a preliminary step. A comprehensive review of the practices within

historic colonialism unveils how the collection, alteration, and destruction of personal records

was instrumental to the advancement of agendas inimical to Indigenous Peoples by colonial

regimes. Such evidence of data extraction practices that predate the digital era, renders

contemporary extraction of personal data a continuation of colonial tradition rather than a “new”

form of colonialism. This paper highlights how colonial governments collected and managed

Indigenous identity records to erase Indigenous Peoples’ identity and facilitate their assimilation

into White culture. To epitomize this theory, I refer to the plight of adult Indigenous American

adoptees, particularly those adopted under the Indian Adoption Project (IAP), 1958-67, as an

example of the content of historic colonialism that data colonialism discourse needs to

acknowledge. Despite facing impediments from the legacy of colonialism, adult Indigenous

American adoptees have resisted assimilation through retracing their Indigenous origins, and

reconnecting with their Indigenous culture, families, and traditional lands. Retracing Indigenous

roots is supported by Article 8 of the United Nations Declaration on the Rights of Indigenous

Peoples (UNDRIP), which recognizes Indigenous Peoples right not to be subjected to forced

assimilation. The lived experiences of Indigenous Peoples embedded in resurgence represent and

define the proper form of decolonization that Indigenous communities envisage. Thus, the

emerging discourse on data de-colonization needs to be responsive to Indigenous Peoples data-

related needs by listening to the voices of Indigenous Peoples—the people who bear the scars of

harms caused by colonial control over Indigenous personal records.

II. WHAT IS DATA COLONIALISM AND WHY ITS MATTERS

Entities and individuals globally are gravely concerned about the threat to their sovereignty

over data posed by the insidious collection of sensitive and personal data by governments or

companies like Facebook, Google, and Amazon. Through the instrumentality of internet

technology, the physical and geographical barriers to accessing or sharing information have been

curtailed, exposing private information to external parties who may in turn misuse it. In May 2021,

sensitive and personal information belonging to over 100 million Android users was reported to

have been exposed due to several misconfigurations of cloud services.

Maria Henriquez, The Top 10 Data Breaches of 2021, SEC. MAG., Dec. 9 2021, available at

https://www.securitymagazine.com/articles/96667-the-top-data-breaches-of-2021.

Personal information collected by the government or external entities can be used for non-

personal purposes, that includes being sold to third parties. In 2020, the American Civil Liberties

Union filed a lawsuit against the Department of Homeland Security and other federal immigration

agencies for secretly purchasing and using cell phone location information to locate and track

people, including for immigration enforcement.

In response to this major—and sudden—shift in the social, legal, and economic order, triggered

by the massive extraction and processing of personal data by data corporations and governments,

scholars across disciplines are advancing theories to either diagnose or remedy the situation.

Two

concepts have prominently associated data extraction with colonialism: “Data colonialism” and

“Digital colonialism.”

Data colonialism is defined as “the startling new social order based on

continuous tracking of our devices and online lives that has created unprecedented opportunities

for social discrimination and behavioral influence by corporations.”

Meanwhile, digital

colonialism is defined as “the decentralized extraction and control of data from citizens with or

without their explicit consent through communication networks developed and owned by Western

tech companies.”

While both theories have gained notoriety among data scholars, the remainder

of this paper focuses on data colonialism.

A. How Data Colonialism Perpetuates Colonial Power Dynamics

While the definition of data colonialism is widely used, scholars have differed in opinion

as to the implications of data colonialism. My argument uses Couldry’s theory which says that

the extraction of personal data is the latest evolution in a long history of territorial colonialism,

which “combines the predatory extractive practices of historical colonialism with the abstract

quantification methods of computing” as a starting point.

This theory further forecasts a wave of

Raymond G. Lahoud, ACLU Sues DHS Over Purchase of Cellphone Location Data to Track Immigrants, NAT’L L.REV.

(Dec. 17, 2020), https://www.natlawreview.com/article/aclu-sues-dhs-over-purchase- cellphone-location-data-to-

track-immigrants.,

Ulises Ali Mejias & Nick Couldry, Resistance to the new data colonialism must start now, ALJAZEERA (Apr. 28, 2020),

https://www.aljazeera.com/opinions/2020/4/28/resistance-to-the-new-data-colonialism-must-start-now.

Id.; See also Daniel Colleman, Digital Colonialism: The 21st Century Scramble for Africa through the Extraction and

Control of User Data and the Limitations of Data Protection Laws, 24 MICH. J. RACE & L. 417, 422 (2019).

See Meijas & Couldry, supra note 4.

See Colleman, supra note 5, at 422. “[T]his structure has four fundamental actors: (1) The Western tech

companies who create and provide the technology and infrastructure that harvest the data for ad targeting and ad

distribution, (2) the advertising and consulting firms who use the technology provided by (1) to target various

groups with highly personalized ads and messages aimed at increasing profits, (3) the "local” companies, parties,

and organizations who pay (2) to help them impose their different agendas for the respective countries, and (4)

the citizens who knowingly and unknowingly act as data sources for (1) and as target groups for (2) and (3).”

Nick Couldry & Ulises Mejias, Data Colonialism: rethinking big data’s relation to the contemporary subject, 20

TELEVISION AND NEWS 336, 336 (2022), available at https://thelivinglib.org/data-colonialism-rethinking-big- datas-

relation-to-the-contemporary-subject/.

data colonialism that could provide the preconditions for a new stage of capitalism where the

appropriation of human life through data is central.

Under these circumstances, appropriation of

human life through data would emulate the socioeconomic reconfigurations that came with

historic colonialism laying the groundwork for industrial capitalism.

Sadowski advances a compelling theory on how data colonialism is fueling ‘informational

capitalism’ characterizing the 21

century political economy.

Drawing on Marx’s theory which

conceptualizes capital as a relationship between money and commodities, Sadowski describes

data as both a digital raw material necessary in the production of commodities, and as a product

of digital labor of people equivalent to the role of financial and human capital in the capitalist

world.

The theory of data as a digital raw material, is plausibly exemplified in the way

companies like Apen rely on human labor from disaster stricken countries like Colombia to carry

out the data labeling necessary for enhancing the profit making capabilities of artificial

intelligence devices.

From a capitalist theoretical perspective, in the same way buildings and physical assets can

have long term value, recorded information necessary to produce a good or service is also being

used as ‘data capital.’

The unique economic identity of data capital is what makes it distinct

from other forms of capital.

Data capital is: (1) non-rivalrous-it can be used by multiple users at

a time; (2) non-fungible—it cannot be substituted; and (3) an experience good—it’s value can

only be realized through experience.

B. Comparison of Data Colonialism and Historic Colonialism

Couldry and Mejias refer to the development of capitalism as a common outcome shared by

both data colonialism and historical colonialism.

However, there is a shift in the resources

available for economic exploitation in the two processes.

Historic colonialism exploited natural

resources that generated profits and socioeconomic reconfigurations that made way for industrial

Humboldt Inst. for Internet and Soc’y, In a nutshell: Nick Couldry on Data Colonialism, YOUTUBE (Nov. 4, 2019),

https://www.youtube.com/watch?v=5tcK-XIMQqE.

See id.

Jathan Sadowski, When data is capital: datafication, accumulation, and extraction, 6 BIG DATA & SOCIETY 1 (2019).

Id. at 1-5.

Karen Hao & Andrea Paola Hernandez, How the AI Industry Profits from Catastrophe, MIT TECH. REV, Apr. 20, 2022,

available at https://www.technologyreview.com/2022/04/20/1050392/ai-industry-appen-scale-data-labels/.

Id.

Nick Couldry & Ulises Mejias, Making data colonialism liveable: how might data’s social order be regulated, 8

INTERNET POL’Y REV. 1 (2019).

Id. at 2.

capitalism.

Data colonialism, on the other hand, exploits human life through extracting

information that is fed into capitalist enterprises in a manner that has implications for

capitalism’s future.

While historical colonialism is associated with appropriations that necessitated industrial

capitalism, the implications of data colonialism on capitalism are yet to be established.

Couldry describes the two main similarities linking data colonialism to historic colonialism

as:

“The subjugation of human beings that is necessary to a resource

appropriation on this scale (relations of subjection to external

powers were central to historic colonialism), and grounding of this

entire transformation in a general rationality which imposes upon

the world a very singular vision of Big Data’s superior claim on

knowledge (just as colonizers justified their appropriation on the

West’s superior rationality).”

The above thesis situates the extraction of personal data into the colonial framing by

comparing two main characteristics of historic colonialism to the way in which personal data is

extracted by corporations in the contemporary.

First, the subjugation of human beings that is

necessary for the appropriation of personal data on a larger scale is synonymous to how

Indigenous Peoples were subjected to settler dominion as a necessary step in the appropriation

of territories and resources.

Secondly, the rationalization of the extraction of personal data

through the imposition on the world of a homogenous view of Big Data as an indispensable

source of knowledge, reproduces how the colonizers justified their appropriation of land and

resources on the West as source of civilization that the world needed.

C. How Data Colonialism Impacts Indigenous Peoples

Equating the contemporary extraction of personal data to historical colonialism requires a

thorough inventory of the contents of the latter, to assess how practices within historic

colonialism are being reproduced in contemporary data relations.

Data colonization compares

the appropriation of territories and natural resources during historic colonialism to the

Id.

Id. at 5.

Id. at 2.

Id. at 3.

See id. at 3.

Id. at 9.

Id. at 3-5.

appropriation of personal data in today’s world.

This connection is arguably tenuous

considering that colonial governments extracted personal information belonging to Indigenous

Peoples in pursuit of various colonial agendas.

Indigenous Peoples are adversely impacted by

the omission, alteration or destroying of their personal records by the settler governments to

erase Indigenous identities.

The same extractive practices deployed against Indigenous Peoples

personal records are being utilized in the contemporary extraction of personal data, albeit

different modes of extraction and motive.

D. The Differences Between Data Colonialism and Historic Colonialism

While it is agreeable that the predatory extractive practices of territorial colonialism exist in

the way data is collected today, there are certain elements unique to historic colonialism. Historic

colonialism pathologized certain races and cultures to justify appropriation of their resources and

territories.

This system thrived on the intentional differentiation of the colonized from the

colonizers, with the latter being ordained a higher-ranking status to justify asymmetry that

subsequently defined the relations between the two.

Meanwhile, data colonialism is expansive

and indiscriminate; "the new data colonialism works both externally—on a global scale —and

internally on its own home populations.”

In turn, Facebook, Twitter—the elites of data

colonialism—"benefit from colonization in both dimensions, and North-South, East-West

divisions no longer matter in the same way.”

Historic colonization relied heavily on the racial formation process: the transformation of

preexisting ethnographic notions of cultural differences into immutable, inheritable racial

differences.

Biological inferiority was a major factor that the Europeans used to rationalize the

extraction of the land and natural resources belonging to the Indigenous Peoples.

Within that

Id.; see also Meijas & Couldry, supra note 4.

See infra-Part VII. My argument is that if there is evidence of extraction of personal information as a practice

during colonialism, then there is no need to equate the current data extraction with the extraction of territories or

natural resources.

Amanda Dodge, An Introduction to the Indigenous Data Sovereignty Movement,, EPIC PRESENCE,

https://epicpresence.com/indigenous-data-sovereignty-movement/ (last visited, Feb. 23, 2022); Sid Davis,

Indigenous Data Sovereignty and Breaking the Cycle of History, GRANT STATION (last visited Feb. 23, 2022),

https://grantstation.com/tracks-to-success/Indigenous-Data-Sovereignty-and-Breaking-the-Cycle-of-History.

MARY-ELLEN KELM, COLONIZING BODIES: ABORIGINAL HEALTH AND HEALING IN BRITISH COLUMBIA, 1900-50, 222 (Univ. British

Columbia Press, 1999).

Jennifer Spear, Race Matters in the Colonial South, 73 J. S. HIST. 579 (2007).

Couldry & Mejias, supra note 8, at 336.

Id.

same colonial framework, data belonging to Indigenous Peoples was collected, destroyed, sealed

or misused to facilitate the assimilation of Indigenous Peoples into White culture.

Colonial governments collected person-related records like birth, adoption, marriage,

divorce, or deceased estates belonging to the Indigenous Peoples.

These records are still vital

for confirming Indigenous rights, privileges, and identities—and necessary for the preservation

of Indigenous Peoples’ genealogical heritage.

Despite these records’ vitality for Indigenous

Peoples, historic colonialisms’ usurpation of their records produced lasting effects. In what is

currently considered the postcolonial era, some affected Indigenous survivors of these practices

still do not have access to their records because they were destroyed, are still being regulated by

settler laws which limit access, are housed in colonial repositories and archives. In some

instances, records were digitized, making access by Indigenous people even harder.

The devastating effects of the deliberate appropriation, mishandling, and altering of

Indigenous personal data are seen in the United States, Australia and Canada where colonial

control over Indigenous records played an instrumental role in facilitating the assimilation of

Indigenous Peoples.

Indigenous children were adopted into White families and, in an effort to

erase their Indigenous identities, their birth and adoption records were collected, altered, sealed,

or destroyed by the settler governments.

Comparably, formerly colonized African territories are

experiencing the adverse impacts of colonialism on Indigenous records.

Namhila reveals

alarming gaps in the national archives of post-colonial Namibia owing to the latter’s failure to

meet requests by Black Namibians for their person related records (records that supply official

and legally valid information about life).

Namibia’s National archives has maintained the

structural divisions used by the colonial government to facilitate the discrimination of persons

classified as “non-whites.”

III. ADOPTION AND ERASURE AND ASSAULT OF NATIVE IDENTITY

Ellen Namhila, Content and use of colonial archives: an under-researched Issue, 16 ARCH. SCI. 111, 117 (2016).

Id. at 121.

Id. at 113.

Id.

See e.g., STEPHANIE CARROLL RAINIE ET AL., ISSUES IN OPEN DATA - INDIGENOUS DATA SOVEREIGNTY (T. Davies, S. Walker, M.

Rubinsstein, & F. Perini eds., 2019), available at

https://www.stateofopendata.od4d.net/chpaters/issues/indigenous-data.html.

Namhila, supra note 35, at 121.

Id.

Id. at 111.

Indigenous children have been the primary target of the United States government’s

assimilative programs.

During the late Twentieth Century, adoption became a conveniently

insidious way of destroying Indian families through separation of children from their parents.

Margaret Jacobs argues that very little research has been done historically on Indigenous

children who were fostered or adopted outside their communities.

Historians tend to conflate

Indigenous adoptions with transracial adoptions of the twentieth century.

While the Bureau of Indian Affairs (BIA) generally oversaw the promulgation of

regulation involving Indigenous Peoples, the administration of the IAP fell beyond the

administrative capacity of the organization.

Accordingly, the BIA contractually delegated the

Child Welfare League of America (CWLA) and other related groups to oversee the IAP which

ran from 1958 to 1967.

The IAP may have overcame barriers preventing Indigenous children

from being adopted into non-Indigenous families, it’s overall success remains subject to mixed

reviews.

At the time of its implementation, the IAP was glorified and perceived as an example of

enlightened adoption practices by non-Indigenous folks.

Conversely, many Indigenous activists

and leaders condemned the IAP as one of the “genocidal policies toward native communities and

cultures.”

Proponents of the IAP indicated the dire living conditions of Native Americans as the

main reason why the children had to be rescued.

In 1968, President Lyndon B. Johnson issued

a message to Congress alleging that “[f]ifty thousand Indian families live[d] in unsanitary

dilapidated dwellings: many in huts, shanties, even abandoned automobiles.”

Yet these allegations pale in comparison to objective truth; it cannot be disputed that the

IAP’s main aim was to prevent the population of Indigenous Peoples from increasing.

The IAP

Margaret D. Jacobs, Remembering the Forgotten Child: The American Indian Child Welfare Crisis of the 1960s and

1970s, 37 AM. INDIAN Q. 136, 136 (2013).

Id.

Id. at 137.

Id.

Stephanie Woodard, Native Americans Expose the Adoption Era and Repair Its Devastation, INDIAN COUNTRY

TODAY, available at https://newsmaven.io/indiancountrytoday/archive/native-americans-expose-the-adoption-era-

and-repair- its-devastation-Uinpv-VkFka0KeFfoMD4eQ/ (last visited Jan. 1, 2022).

Id.

The Indian Adoption Project, U. OREGON, https://pages.uoregon.edu/adoption/topics/IAP.html (last visited Dec.

16, 2021).

Id. Sovereignty is the internationally recognized right of a nation to govern itself, and Indigenous Tribes as

sovereign governments long before European settled in—and colonized—the Americas.

Id.

Lyndon B. Johnson, Special Message to the Congress on the Problems of the American Indian: The Forgotten

American, 1 PUB. PAPERS 335 (Mar. 6, 1968).

See Jacobs, supra note 44, at 136.

focused its extraction of Indigenous children on those who had at least a quarter of Indigenous

blood—which is the amount necessary for tribal enrollment—so that Indigenous populations

would dwindle under state supervision.

The general conclusion from this theory is that; adult

adoptees who were sent into non- Indigenous families were deprived of their sense of identity,

belonging—and of any connection with their Indigenous culture and heritage.

These heinous deprivations hindered numerous Indigenous children to an extent

surpassing even the IAPs contractual intent. The official terms of the contract between the BIA

and the CWLA indicate that 395 Indian children from sixteen states were adopted.

However,

the demand by adoptive families for Indian adoptees exceeded the capacity of the IAP,

prompting the extension of referrals to state and county departments of social services.

It has

been estimated that this extension resulted in the adoption of nearly 12,500 Indigenous children

between 1961 and 1976 outside the scope of what was contractually mandated through the IAP.

As this paper will address, the failure of official records to reflect accurate statistical data

relating to Indigenous adoptions is a microcosm of the bigger challenges Indigenous Peoples still

face from the undercounting and assimilation of relevant data into general statistics.

American liberalism, which became a post-World War II state of affairs, provided fertile

ground for the civil rights movement, where racial ideologies were liberalized while gender roles

shifted.

Interracial adoption became acceptable, paving way for the popularity of Indian children

as the preferred adoptees, thus increasing the number of the families interested in adopting

Indian children.

The separation of Indigenous children from their families through adoption

was rationalized by three separate yet interwoven narratives: A) the forgotten Indigenous child;

B) the unmarried Indigenous mother; and C) the destitute Indigenous family.

Lila George, Why the Need for the Indian Child Welfare Act, 5 J. MULTICULT’L SOC. WORK 165 (1997).

Id. at 166. While this paper relies on the IAP to illuminate colonial reliance on Indigenous Peoples personal data,

an account of the IAP would be incomplete without highlighting the causal link it shared with the Boarding School

era which preceded it. The Boarding School era was one of the main assimilationist programs involving the

separation of Indigenous children from their families as a way of “Saving God’s forgotten children.” Indigenous

children were taken from their families and “were placed in either government boarding schools or Mission

catholic schools so that they could be away from a life of poverty, ignorance, and dirt associated with Indian

families.”; George, supra, at 171. While in boarding schools, Indigenous children were required to adopt a “white”

name in place of their actual name, and the male children had to cut their long hair, of which is sacred to

Indigenous peoples. If rules were not followed, common punishments included failure to assure any “rule breaker’s”

attendance until age sixteen, commitment to reformatory schools, excommunication from the church, and

standing still by the bedside for hours at night.; George, supra, at 166. Psychologists have traced parenting

struggles faced by some Indigenous parents whose children became the target of social workers during the IAP to

the psychological trauma experienced in boarding schools.

Woodward, supra note 48.

Id.

See Jacobs, supra note 44, at 141. The sexual revolution caused gender norms to shift as paid opportunities for

women increased and contraceptives became available. In turn, fewer white middle-class women were having

unintended pregnancies and those who did were deciding to keep their babies at high rates.

Id.

A. The Forgotten Indian Child

From the late nineteenth Century, policy makers and reformers expressed concern about

how Indigenous children were raised and condemned the Indigenous women’s mothering and

home-making skills.

Between 1880 and 1930, an unknown number of Indigenous children were

removed from their families and placed into boarding schools.

After the boarding school

system grew unpopular, the IAP served as the federal government’s “modern” approach to

addressing the growing concern relating to the living conditions of Indian children on the

reservation.

Narrative of the suffering Indigenous child were promoted by key players in the federal

government, including Arnold Lyslo, who headed the IAP, and Joseph Reid, the executive

director of CWLA.

According to Reid, the IAP originated out of a growing concern for “the

numbers of homeless Indian children living on reservations who were being deprived of homes

of their own because Indian families were unable to absorb these children through adoption.”

In addition, President Lyndon B. Johnson bemoaned the high levels of illiteracy among Indian

Americans.

In a 1968 report to the Congress, the president referred to the high rate of high

school dropouts, the language barriers faced by Indigenous Peoples, the isolation of Indigenous

Peoples in remote areas, as well as Indigenous children’s lacking tradition of academic

achievement.

B. The Destitute Indian Family

Prior to the imposition of assimilationist policies by the federal government, Indigenous

families were based on the kinship system, which depended on familial relationships as a

convenient source of caregiving and imparting traditional values of respect, reciprocity, and

balance.

Kinship is still at the core of the Indigenous Peoples ways of being.

And for Indigenous

children today, the household remains an important space for learning the traditions from their

parents, grandparents, siblings, and other relatives.

Id.

Johnson, supra note 54.

Id.

Leo Killsback, A nation of families: traditional indigenous kinship, the foundation for Cheyenne sovereignty, 15

ALTERNATIVE: INT. J. INDIGENOUS PEOPLES 34 (2019).

Stephen Sachs, Remembering the Traditional Meaning & Role of Kinship in American Indian Societies, To

Overcome Problems of Favoritism In Contemporary Tribal Government, 22 INDIGENOUS POL’Y J. 1 (2011).

Killsback, supra note 69, at 36; see also Jacobs, supra note 44, at 140.

Due to its unique nature and difference to colonial concepts of family, Indigenous

American kinship was regarded as chronically dysfunctional.

The CLWA argued that the

Indigenous American extended family was a significant threat to a child's physical, emotional,

and intellectual development.

Thus, the priority became removing Indigenous children from

their kinship.

C. The Unmarried Indian Mother.

During the period between 19391958, psychoanalytic theories found that unmarried

mothers “have serious personality disturbances,” and “were incapable of providing sustained

care and security for their babies.”

Giving birth out of the wedlock was medicalized: unwed

mothers were deemed psychologically unfit to take care of their children.

Social workers and

parents sought to salvage the reputation of these “wayward” daughters by hiding their

pregnancies, having them delivered in special maternity homes, and giving their babies up for

adoption.

A societal need to contain sex within the confines of marriage also compounded

sentiments against unmarried mothers in general.

For most Indigenous American tribes, raising children born out of wedlock did not

present a formidable challenge as extended family or clan members would always be an

invaluable source of support.

Some Indigenous tribes, like the Ute Indians, did not even

formalize marriages or divorces; in essence, it was not an anomaly for mothers to have sole

custody of children following a break-up.

Additional factors fueling adoption of Indigenous children are the shifting of gender norms.

An increase in paid opportunities for women, heightened infertility, and the introduction of

advanced methods of contraception contributed to a decrease in pregnancies among White middle-

class American women.

The typical functional family remained the White middle-class nuclear

family, yet it was hit hard by a shortage of children. Undue influence, intimidation, and deceit

under the guise of adoption became the common circumstances under which Indigenous mothers

had to give up their children.

Killsback, supra note 69, at 36.

Id.

E. Wayne Carp, The Sealed Adoption Records Controversy in Historical Perspective: The Case of the Children's

Home Society of Washington, 1895-1988, 19 J. SOCIO. & SOC. WELFARE 27, 44 (1992).

Id.

Jacobs, supra note 44, at 141.

Id. at 147.

Id. at 146.

Id. at 142.

Id. at 145-6. Evidence indicates that some Indigenous women were subject to pressure from social workers to

surrender their children for adoption. In certain instances, the Indigenous mothers were forced to sign adoption

papers without knowing that they were giving away their children by doing so. More so, these unmarried mothers

IV. ACCESSING ADOPTION RECORDS IN THE UNITED STATES

Members of the adoption triad (adoptive parents, birth parents and the adoptee) usually

seek access to adoption records for different reasons.

Adopted persons usually initiate contact

with their biological families through adoption agencies by obtaining copies of birth certificates

or searching for their background and genetic information for various reasons that shall be given

below.

Birth mothers seek adoption records to know about their children's welfare, and adoptive

parents may contact adoption agencies to get information on the child’s background and medical

history.

Adoption records include: the adoption decree, information gathered during pre-

placement interviews about birth parents and their families, and the Original Birth Certificate

(OBC).

Historians, social workers, and adoption rights activists are said to often erroneously

assume that adoption records have always been sealed and adoption agencies have always been

unwilling to disclose adoption records.

Highlighting the lack of comprehensive literature that

accurately unpacks the history of sealed adoption records in America, Carp Wayne says:

Adoption rights activists, in their quest for their biological

families, incorrectly assume that they are demanding the opening

of records that have always been sealed and fail to understand the

multiple factors responsible for sealing adoption records. A longer

historical perspective reveals instead a more complicated—but

more usable—past.

Adoption laws in the United States evolved through three phases. Since English common

law did not recognize the practice of adoption, statute law has always been the primary

were denied information about due process, their right to an attorney, and their legal rights more broadly. Even

though non-Indigenous single mothers were subject to such pressures, it was particularly excessive for the

unmarried Indigenous unwed mother.

Carp, supra note 74, at 29.

Id. at 31.

Id. at 32.

A blog for and by American Indian And First Nations adoptees who are called a STOLEN GENERATION

#WhoTellsTheStoryMatters #WhyICWAMatters, AM. INDIAN ADOPTEES (last visited July 8, 2022),

http://blog.americanindianadoptees.com/p/about-indian-adoption-%20projects.html [hereinafter STOLEN

GENERATION]

Carp, supra note 74, at 28. “These assumptions are so deeply rooted, so unquestioned, that adoption rights

advocates have not even asked the question, “Have adoption records always been sealed?” because they begin

with the ahistorical presumption that what is has always been so, and proceed accordingly.”

Id. at 52.

instrument for the regulation of adoptions.

The first legislation on adoption was passed by the

state of Massachusetts, and just like the adoption laws that were enacted in other states during

this time, it did not bar access to adoption records as confidentiality was not a matter of

concern.

From 1895 to the mid 1950s, adoption policies and laws allowed adult adoptees

access to both identifying and non-identifying information—provided it was in their “best

interests.”

The second evolutionary phase for adoption laws in the United States developed from

1955 to 1968 and was characterized by policies that placed restrictions—especially on disclosing

identifying information to adult adoptees.

The basis of the restrictive stance was the prevailing

belief that adoptees who sought reunion with birth families “were irrational or emotionally

disturbed.”

There was also the need to protect the privacy of the adoptive families.

The third and prevailing era of adoption policies started in the 1970s, when many states

began enacting laws that do not allow the disclosure of adoption records without a court order.

In Juman v. Louise Wise Services, the New York supreme court said that confidentiality of

adoption records safeguards the privacy interests of natural parents, adoptees, and adoptive

parents.

Confidentiality, the court continued, was imposed to further the state's broader

sociological plan to provide a child with a substitute family through the adoption process.

While many states’ adoption policies mirror New York’s, others do not. Some state laws

allow unrestricted access to adoption records, which means the adult adoptee can access original

birth certificate without any restrictions.

Some state’s allow partial access to adoption records

or access with restrictions.

Typically, under this classification, access to non-identifying

information is unrestricted while there are conditions to releasing identifying information.

These conditions include mutual consent registries requiring the biological parents and the

adoptee to indicate their willingness to meet.

100

Jason Kuhns, The Sealed Adoption Records Controversy: Breaking Down the Walls of Secrecy, 24 GOLDEN GATE U. L.

REV. 259, 260 (1994).

Id. at 260-61.

Id. at 260.

Carp, supra note 74, at 29.

Id.

Kuhns, supra note 88, at 263.

Juman v. Louise Wise Servs., 159 Misc. 2d 314, 321, 608 N.Y.S.2d 612 (1994).

Id.

Unrestricted, ADOPTEE RTS. L. CTR., https://adopteerightslaw.com/focus/unrestricted-access/(last visited June 15,

2022).

Id.

100

Id.

The last classification is sealed (i.e., restricted) records which means an adult adoptee

cannot access their adoption records absent a court order.

101

Lately, state legislation on accessing

adoption records is increasingly inspired by what is known as “clean” adoption reform.

102

The

clean adoption movement has grown to become a widely accepted best practice in adoption, and

advocates for granting unrestricted access to adoption records.

103

The chart below shows the percentage of the states that have legislation allowing either,

unrestricted, partial access or restricted access (sealed) to adoption records. The specific state

by name, and the corresponding classifications are listed subsequently in Table 1.1.

Figure 1.0

Table 1.1

STATE

LEGISLATION

STATE

LEGISLATION

ALABAMA

Unrestricted Access

MISSOURI

Access with Restrictions

101

Id.

102

Kristen Shaughnessy, Report Could Push Clean Adoption Reform Bill Vote In New York, SPECTRUM NEWS (May 1,

2018, 12:21 PM), https://www.ny1.com/nyc/all-boroughs/news/2018/05/01/state-health-department-weighs-in-

on-clean- adoption-reform-bill-.

103

Id.

ALASKA

Unrestricted Access

MONTANA

Partial with Restrictions

ARIZONA

Sealed

NEBRASKA

Partial with Restrictions

ARKANSAS

Access with Restrictions

NEVADA

Sealed

CALIFORNIA

Sealed

NEW HAMPSHIRE

Unrestricted Access

COLORADO

Unrestricted Access

NEW JERSEY

Access with Restrictions

CONNECTICUT

Partial Access

NEW MEXICO

Sealed

DELAWARE

Access with Restrictions

NEW YORK

Unrestricted

DISTRICT OF

COLUMBIA

(DC)

Sealed

NORTH

CAROLINA

Sealed

FLORIDA

Sealed

NORTH DAKOTA

Sealed

GEORGIA

Sealed

OHIO

Access with Restrictions

HAWAII

Unrestricted Access

OKLAHOMA

Partial with Restrictions

IDAHO

Sealed

PENNSYLVANIA

Access with Restrictions

ILLINOIS

Access with restrictions

RHODE ISLAND

Unrestricted Access

INDIANA

Access with restrictions

SOUTH CAROLINA

Partial with Restrictions

IOWA

Sealed

SOUTH DAKOTA

Sealed

KANSAS

Unrestricted Access

TENNESSEE

Access with Restrictions

KENTUCKY

Sealed

TEXAS

Sealed

LOUISIANA

Sealed

UTAH

Sealed

Currently, only eleven states in the United States have legislation granting unlimited

access to adoption records.

104

Meanwhile, a total of twenty-four states allow partial access or

104

Id.

access with restrictions to adoption records.

105

And seventeen states, as well as the District of

Columbia, have completely sealed their adoption records.

106

Where adoption records are completely sealed, identifying information can only be

released upon a judicial finding of good cause.

107

Courts in good cause jurisdictions have not

reached a consensus on the specific set of factors to be considered when deciding what amounts

to good cause.

108

Such state courts have shifted the burden on the state legislatures to provide

required guidance on what interests to balance when considering good cause.

109

When confronted with the task to decide on the interests to balance when making a

determination of good cause, some courts have avoided the issue completely, and denied adult

adoptees access to records.

110

Meanwhile, other courts have implicitly formulated a good cause

standard through a constitutional lens, noting that privacy is a constitutionally guaranteed right

which cannot be outweighed by a right to access information unavailable to the general public.

111

Typically, courts that adopt the preceding approach utilize a balancing test. For example, a

Missouri juvenile court listed the following as the conflicting interests that need to be balanced

when determining good cause: 1) the nature of the circumstances dictating the need for release of

the identity of the parents; 2) the circumstances and the desire of the adoptive parents; 3) the

circumstances of the birth parents and their desire or at least the desire of the birth mother not to

be identified; and 4) the interest of the state in maintaining a viable system of adoption by

guaranteeing confidentiality.

112

The mental health of the adoptee has also been considered elsewhere as a factor that may

suffice as good cause. In re Maples, the court indicated that the public has an interest in the

mental health of children who have been adopted, especially their psychological need to know

105

Kuhns, supra note 88, at 263-64. Non-identifying information generally consists of date and place of adoptees

birth, age of biological parents at the time of adoption and any other information that does not reveal the identity

of the birth parents. Identifying information includes any information that may lead to the positive identification of

birth parents, the adult adoptee, or other birth relatives.

106

State Adoption Laws, AM. ADOPTION CONG., (last visited July 8, 2022),

https://www.americanadoptioncongress.org/state.php .

107

Id.

108

Christopher Loriot, Good Cause is Bad News: How the Good Cause Standard for Record Access Impacts Adult

Adoptees Seeking Personal Information and a Proposal for Reform, 11 U. MASS. L. REV. 100, 112 (2016).

109

Id.

110

Id.; see e.g., Jo Backes v. Cath. Fam. & Cmty. Servs., 210 N.J.Super. 186, 509 A.2d 283 (Ch. Div. 1985) (trial court

refused to appoint an intermediary that would allow an adult adoptee to contact his birth parents because there

was no express authority for the court to do so, despite the presence of statutory ‘good cause’ language.)

111

Loriot, supra note 108, at 112.

112

In re George, 625 S.W.2d 151, 156 (Mo. Ct. App. 1981).

who their birth parents are.

113

Similarly, in re Dixon, the Michigan Court of Appeals included

“compelling medical reasons and psychological reasons” as possible grounds for good cause.

114

Despite some courts acknowledging an adoptee’s psychological need to know as good

cause for unsealing adoption records, they remain mute on what precisely constitutes a judicially

sufficient psychological need.

115

In Mills v. Atl. City Dep't of Vital Stat’s., the court concluded an

adoptee must be “impelled by the need to know which is far deeper than ‘mere curiosity,’”

without further clarification.

116

Adding to this ambiguity, the court in in re Maples concluded—

also absent any explanation—that an adoptee cannot be given access to adoption records when

“little more than a thinly supported claim of a psychological need to know is put forth. . .”

117

In addition, even when courts find psychological need sufficient to show good cause, the

ambiguous, undefined term is often outweighed by other considerations. In one case, the

Supreme Court of Missouri concluded that, despite the adoptee having a psychological need to

know, because the individual had prospered socially, intellectually, and financially as the child of

her adoptive parents, there was no compelling psychological need emanating from the secrecy of

the adoption that would render the adoptee a “burden to the society.”

118

In another unclear yet

comparable ruling, the court in Dixon did not qualify the existence of psychological illness as

good cause—reasoning that since the psychological illness arose from treatment in the adoptive

home, it could not be directly attributable to the lack of information about biological parents.

119

As a result of this judicial hodge-podge, the constitutionality of statutes sealing adoption

records has been subject to scrutiny from adoption rights activists. This scrutiny rests on the

premise that denying access to adoption information infringes upon the rights to equal protection,

privacy, and access to important information.

In Alma Soc. Inc., v Mellon, the court was asked whether adopted persons are

constitutionally entitled to obtain their sealed adoption records upon reaching adulthood,

including the names of their natural parents, without a showing of good cause.

120

The adult

adoptees argued the legislation sealing adoption records discriminated against them based on

their adoption status because non adoptees had unlimited access to their birth records.

121

It was

further argued that status imposes burdensome characteristics that are indistinguishable from

those imposed by illegitimacy—which was declared a quasi-suspect class for equal protection

113

In re Maples, 563 S.W.2d 760, 764 (Mo. 1978). The court included the state’s interest to protect and foster an

effective scheme for adoption, and the public’s interest in preserving the confidential non-public nature of the

process.

114

In re Dixon, 116 Mich. App. 763, 770, 323 N.W.2d 549, 552 (1982).

115

Loriot, supra note 108, at 114-15.

116

Mills v. Atl. City Dep’t of Vital Stat.’s, 148 N.J.Super. 302, 318, 372 A.2d 646 (N.J. Ch. 1977)

117

Maples, supra note 112, at 766.

118

Id. at 764.

119

Dixon, supra note 114, at 771.

120

Alma Soc. Inc. v. Mellon, 601 F.2d 1225, (2d Cir. 1979), cert. denied, 444 U.S. 995, 62 L.Ed.2d 426 (1979).

121

Id. at 1234.

purposes—should be subject to heightened scrutiny.

122

The court rejected the adult adoptees’

argument stating that “[s]imply because most adult adoptees are allegedly illegitimates, it does

not follow that adoptees are subject to the same level of constitutional scrutiny as illegitimates,

much less a greater level.”.

123

Similarly, in Mills, adult adoptees argued that placing a shield of secrecy over the

identity of their natural parents abridges both their right to privacy and to receive important

information.

124

Rejecting this claim, the court said that the right to privacy asserted by adoptees

was in direct conflict with the right to privacy of the natural parent whose identity was assuredly

shielded from public disclosure.

125

It held that, “[the sealing statutes] abridge no fundamental

right protected by the Constitution, nor do they create a suspect classification, but rather protect a

rational state interest by placing reasonable limitations upon the adoptee’s access to their birth

records.”

126

The above uncertainty has divided the sealed adoption record controversy in two

ideological camps. On one hand, proponents of sealing adoption records argue that doing so

protects the identity of birth parents, the privacy of adoptive parents and their family—and

shields the child from unpleasant knowledge regarding their illegitimacy. On the other hand,

there are those who believe that sealing adoption records is a serious violation, particularly of the

rights of the adult adoptee to know their biological family.

A. ICWA and Adult Native Adoptees’ Access to Adoption Records

In 1978, the United States Congress—with the intention to “protect the best interests of

Indian children and to promote the stability and security of Indian tribes and families,”—passed

the Indian Child Welfare Act (ICWA).

127

Recognizing that children are vital to the continued

existence and integrity of Indigenous tribes, ICWA gave federally recognized tribes exclusive

jurisdiction over Indigenous child custody proceedings, in effect, restoring tribes’ custodianship

of the Indigenous child, at long last.

128

122

Id. at 1233.

123

Id. at 1234. The court further stated the adopted are not generally subject to extensive legal disabilities and

thus have less of a claim to judicial protection than illegitimates.

124

Mills, supra note 116, at 306. Plaintiffs were challenging the constitutionality of N.J.S.A. 26:8—40.1 and 9:3—31,

which require the state registrar to place under seal the original birth certificate of any child who is adopted.

125

Id. at 316.

126

Id.

127

Indian Child Welfare Act of 1978, Pub. L. No. 95–608, 92 Stat. 3069 (1978).

128

Id. at §§ 1903(1), 1911(1). To safeguard Indigenous families, ICWA authorizes the secretary of the Interior make

grants directly to Indigenous Tribes and organizations that establish family development programs for Indigenous

families on and off the reservation.

Three ICWA provisions are of relevance to this paper: § 1917,§ 1951, and § 1923.

129

The

former says:

Upon application by an Indian individual who has reached

the age of eighteen and who was the subject of an adoptive

placement, the court which entered the final decree shall

inform such individual of the tribal affiliation, if any, of the

individual's biological parents and provide such other

information as may be necessary to protect any rights

flowing from the individual's tribal relationship.

130

While § 1917 justifies its function to protect any tribal rights adult adoptee’s have not

been afforded, § 1951(b) extends the same right to adult adoptees for enrollment purposes:

Upon the request of the adopted Indian child over the age

of eighteen, the adoptive or foster parents of an Indian

child, or an Indian tribe, the Secretary shall disclose such

information as may be necessary for the enrollment of an

Indian child in the tribe in which the child may be eligible

for enrollment or for determining any rights or benefits

associated with that membership. Where the documents

relating to such child contain an affidavit from the

biological parent or parents requesting anonymity, the

Secretary shall certify to the Indian child's tribe, where the

information warrants, that the child's parentage and other

circumstances of birth entitle the child to enrollment under

the criteria established by such tribe.

131

However, § 1923 provides that the aforementioned provisions shall not “affect a

proceeding under State law for foster care, placement, termination of parental rights, preadoptive

placement, or adoptive placement . . . initiated or completed prior to one hundred and eighty

days,” subsequent to the ICWAs enactment unless it is a “subsequent proceeding affecting the

custody or placement of the same child.”

132

Since this article focuses mostly on adoptions that

129

Id. at §§ 1917, 1951.

130

Id. at § 1917.

131

Id. at § 1951(b).

132

Id. at § 1923.

took place prior to the enactment of ICWA, it is important to clarify how the IAP era adoptions

fall under ICWA provisions.

In In re Hanson, the court said that a petition to open the records of an adoption that

happened in 1969 qualifies as “both a ‘subsequent proceeding’ and a proceeding under State law

for foster care placement, termination of parental rights, preadoptive placement, or adoptive

placement.”

133

The executive branch agreed; the Bureau of Indian Affairs (BIA) clarified that §

1917 “applies regardless of whether or not the original adoption was subject to the provisions of

the Act.”

134

Meaning, ICWA applies to adoptions that took place prior to its enactment—and

provides a vehicle to supersede state privacy laws that limit access to adoption records.

135

B. Pre-ICWA Struggles for Indigenous Adoptee’s to Access Records

People don’t seem to understand why this piece of paper is so

important, that it has the power to unlock a life, an identity,

that until now has been inaccessible because of sealed record.

They, with their full lives, genealogies, and unquestioned

documentation, don’t understand that my life book begins on

chapter 3. Chapters 1 and 2 are located in various bureau

drawers and file cabinets, three-ring binders, and other people’s

memories.

136

These are the words of Suzan Harness, a member of the Confederated Salish and

Kootenai Tribes who was removed from her tribe at eighteen months old to be placed in a White

adoptive family.

137

Susan’s adoption happened under the IAP, and social workers cited “neglect”

as the reason for her adoption.

138

Susan did not meet her biological family at the age of thirty-

four—and only after a social worker in Montana violated the policy and showed Susan her

adoption file.

139

Susan’s words resonate with several other Indigenous adults who were placed in White

families pursuant to the IAP and other United States’ assimilationist policies. Many of these

133

In re Hanson, 188 Mich.App. 392, 396, 470 N.W.2d 669 (1991).

134

Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,595 (Nov. 26, 1979)

[hereinafter Guidelines for State Courts].

135

See In re Mellinger, 288 N.J.Super. 191, 195, 672 A.2d 197 (1996). The New Jersey trial court concluded that

“Congress intended that the ICWA override the State’s interest in confidentiality of adoption records.”; see Id.

“Where state law prohibits revelation of the identity of the biological parent, assistance of the [BIA] shall be sought

where necessary to help an adoptee who is eligible for membership in a tribe establish that right without

breaching the confidentiality of the record.”

136

SUSAN HARNESS, BITTEROOT: A SALISH MEMOIR OF TRANSRACIAL ADOPTION (Univ. of Nebraska Press 2018) (ebook) (the

online edition did not contain any page numbers; the author is unable to provide pincites for this source.)

137

Id.

138

Id.

139

Id.

adult adoptees do not know anything regarding their biological families or tribes, as most

adoptive parents are unwilling to share this information with them.

140

Indeed, § 1917 and § 1951(b) of ICWA give Native American adult adoptees the right to

secure necessary information from the court which entered the decree, to enable them to enroll

into a tribe and/or access rights they may have from the tribal affiliation.

137

In situations where

the adult adoptee does not have knowledge about the court that entered the adoption decree, that

individual can contact the BIA, which ”supposedly maintains the records of adopted Indian

children since November of 1978.

141

Most Indigenous adult adoptees do not have any additional information linking them to a

tribe or to prove if they are Indigenous at all because this information was deliberately concealed

from them by their adoptive parents. The BIA registry primarily carries records for adoptions

that took place after November of 1978 and is unable to provide records for those adopted prior

to the ICWAs enactment.

142

And these challenges are also faced by the descendants of pre-ICWA Indigenous adult

adoptees. In custody proceedings, courts have refused descendants of pre-ICWA adoptees’

access to their family’s adoption records if they do not have information linking them to a

specific tribe or at least knowledge of the court which entered the adoption decree.

143

In certain

instances, even where adult adoptees know who their blood Native relatives are, some tribes still

require their original birth certificates, to enroll them and their children as tribal members.

144

This practice has—and can potentially still—sustain the separation of Indigenous families

through the judicial system as exemplified in two dependency cases in California : In re C.Y.,

145

and In re N.C.

146

In In re C.Y., a mother who was adopted as a child knew that she was Indigenous but did

not have any way to prove her Indigenous ancestry.

147

The court acknowledged that the

Department of Health and Human Services (DHHS) has an affirmative and continuing duty to

inquire if a child may be an Indigenous, but stressed that “neither the DHHS nor the court is

required to conduct a comprehensive investigation into the minors’ Indian status.”

148

Due to the

mother’s inability to provide supporting documentation of her Indigenous heritage, the court

affirmed the trial court’s ruling and terminated her parental rights.

149

140

Id.

141

NAT’L INDIAN L. LIBR., Topic 15: Access to records for tribal enrollment purposes (last visited Feb. 27, 2022),

available at https://narf.org/nill/documents/icwa/faq/access.html#Q4%20.

142

Id.

143

STOLEN GENERATION, supra note 85.

144

Id.

145

In re C.Y., 208 Cal. App. 4th 34, 144 Cal. Rptr. 3d 516 (2012)

146

In re N.C., No. 2D JUV. B240029, 2012 WL 5936671 (Cal. Ct. App. Nov. 28, 2012).

147

In re C.Y., supra note 145, at 37-38.

148

Id. at 39.

149

Id. at 43.

Similarly, in In re N.C., a woman knew that she was of Indigenous heritage through her

father, who was adopted into a White family as a child.

150

And like the mother in C.Y., the

women’s father was unable to provide any additional information regarding his Indigenous

heritage.

151

Guided by the decision in C.Y., the court terminated her parental rights upon ruling

that ICWA did not apply because the local Child Welfare Services (CWS) “was not required to

seek the unsealing,” of her father’s birth records when inquiring into the child’s Indigenous

heritage.

152

Fortunately, the federal government has responded to these heinous judicial outcomes. In

2016, the BIA issued guidelines for implementing the ICWA, wherein state courts are now

required to determine at the outset of any child custody proceeding whether the Act applies (‘the

inquiry’).

153

The guidelines stipulate that, after a court conducts ‘the inquiry,’ a court “has reason

to know” that a child involved in a proceeding is Indigenous if:

(1) Any participant in the proceeding, officer of the court

involved in the proceeding, Indian Tribe, Indian

organization, or agency informs the court that the child is

an Indian child;

(2) Any participant in the proceeding, officer of the court

involved in the proceeding, Indian Tribe, Indian

organization, or agency informs the court that it has

discovered information indicating that the child is an Indian

child;

(3) The child who is the subject of the proceeding gives the

court reason to know he or she is an Indian child;

(4) The court is informed that the domicile or residence of

the child, the child's parent, or the child's Indian custodian

is on a reservation or in an Alaska Native village;

(5) The court is informed that the child is or has been a

ward of a Tribal court; or

(6) The court is informed that either parent or the child

possesses an identification card indicating membership in

an Indian Tribe.

154

Where the court does not have sufficient evidence to determine that the child is or is not

an Indigenous, it is required to:

150

In re N.C., supra note 146, at 1*.

151

Id.

152

Id. at 2*.

153

25 C.F.R. § 23.107 (2022).

154

25 C.F.R. at § 23.107(c)(1)-(6).

(1) Confirm, by way of a report, declaration, or testimony

included in the record that the agency or other party used

due diligence to identify and work with all of the Tribes of

which there is reason to know the child may be a member

(or eligible for membership), to verify whether the child is in

fact a member (or a biological parent is a member, and the

child is eligible for membership); and

(2) Treat the child as an Indian child, unless and until it is

determined on the record that the child does not meet the

definition of an “Indian Child” in this part.

155

Whether “reason to know if a child is Indian” warrants unsealing closed adoption records,

however, remains unclear. But one can argue that “working with all of the tribes of which there

is reason to know the child may be a member” entails contacting other relatives to verify—a

process which was previously denied in In re C.Y. which was decided before the issuance of the

guidelines.

147

Notably, following release of the guidelines, the state of California created a policy

recognizing that information which suggests a child is or might be Indigenous can come from the

“child’s extended family.”

156

This implies that, today, a court in a child custody proceeding has

sufficient latitude to entertain claims by the family members of Indigenous adult adoptees

regarding their child’s Indigenous heritage.

The introduction of ‘the inquiry’ may be an opportunity for unsealing adoption records or

obtaining information about the relatives of an adult Native adoptee from their tribe through the

assistance of the court. However, one drawback remains hard to ignore: the inquiry avenue is

only available in a custody proceeding; it is not available to many of the adoptees whose

descendants may not be involved in a custody proceeding.

C. ICWA offers Limited Reasons for Accessing Adoption Records

Despite the ICWA providing adult adoptees legitimate avenues to secure previously

sealed adoption records, it provides limited avenues for an individual to do so. In granting the

right to secure necessary information about tribal affiliation to adult adoptees, Congress sought

to protect their right to tribal enrollment.

157

155

25 C.F.R. at § 23.107(b)(1)-(2).

156

Judicial Council of California, California Family Code Provisions Implementing the Indian Child Welfare Act, OPS.

& PROGRAMS DIV. CTR. FAM., CHILD., & CT.’S (Sept. 21, 2020), available at

https://www.courts.ca.gov/documents/ICWAFamilyCode.pdf.

157

H.R. Res. 95—1386, at 7 (1978), as reprinted in 1978 U.S.C.C.A.N. 7530, 7531.

Even with revelations surrounding an adopted individual’s inherent right to be informed

of their genealogical background, Congress did not enact the ICWA with that in mind.

158

Instead, Congress’ primary aim was to protect: a.) the right an “individual has as a member or

potential member of an Indian tribe, and any collateral benefits which may flow from the Federal

Government because of such membership,” and b) the right of “an Indian tribe in having its

children remain part of or become a part of the tribe.”

159

An additional reason Congress did not

provide a broad range of reasons that permit Indigenous adult adoptees to access their adoption

records was to avoid conflict with state laws: The ICWA “was not intended to supersede the

decision of state legislatures on whether adult adoptees may be told the names of their biological

parents. The intent is simply to assure the protection of rights deriving from tribal

membership.”

160

This issue was left unaddressed in subsequent ICWA guidelines and rules promulgated

by the BIA in 2015 and 2016 respectively.

161

Limiting access to adoption records for the sole

purpose of tribal membership denies adult adoptees access to records for reasons beyond tribal

membership, or for those who are not members of federally recognized.

162

Adult adoptees and

their descendants may not present as “Indigenous” or fit neatly into the existing tribal

membership criteria. As a result, being unenrolled is not adult adoptees cause for concern due to

the intricacies associated with Indigenous identity—including the need to meet a certain blood

requirement to be enrolled in a tribe.

163

In order to be enrolled as a tribal member, one must meet the requirements for

membership to a specific tribe which are usually enshrined in tribal constitutions approved by the

BIA.

164

Tribes determine membership using patrilineal or matrilineal ancestry; this means one

needs to have descended from someone named on the tribe's base roll or be related to a tribal

158

Id.

159

Id. at 24.

160

Guidelines for State Courts, supra note 134, at 67,595.

161

Indian Child Welfare Act, 25 C.F.R. § 23 (2022). The BIA issued non-binding guidelines and binding rules in 2015

and 2016 respectively. The non-binding 2015 guidelines provide that in State’s where adoption records remain

closed, the relevant agency should, at a minimum, communicate directly with the tribe's enrollment office and

provide the information necessary to facilitate the establishment of the adoptee's tribal membership. Meanwhile,

the 2016 rule relating to §§ 1917 and 1951 clarified that it deals with certain specific rights of adult adoptees to

information on tribal affiliation, in accordance with the statute, rather than all rights of adult adoptees.

162

Paul Spruhan, A Legal History of Blood Quantum in Federal Indian Law to 1935, 51 S.D. L. REV. 1, 5 (2006).

Unrecognized tribes are usually made up of two groups of humans: people whose ancestors were denied

recognition by early government agents or died before registration was complete, or people whose tribes, in the

face of the federal government’s efforts to extinguish them, did not maintain the cohesion required for

recognition.

163

Id.

164

Russel Thornton, Tribal Membership Requirements and the Demography of “Old” and “New” Native Americans

in CHANGING NUMBERS, CHANGING NEEDS 105 (Nat’l Acad. Press 1996).

member who descended from someone named on the base roll.

165

Another commonly used

criteria tribes use to enroll their members is blood quantum—despite the method having deep

roots in colonial practices.

166

Since the enactment of the Indian Reorganization Act (IRA) in

1934,

167

tribes have the right to determine criteria for their membership.

168

Nonetheless,

methods used by tribes to determine tribal membership may still be influenced by the colonial

objectives of dispossessing, excluding, and exterminating Indigenous Americans.

169

Many tribes were influenced by the IRA to formalize their governmental structures and

adopt their tribal constitutions, including the blood quantum as criteria for membership.

170

fact, the very language used by the IRA to define ‘‘Indian’’ adopts the blood quantum as part of

its definition; “all persons of Indian descent who are members of any” federally recognized tribe,

“and all persons who are descendants of such members who were, on June 1, 1934, residing

within the present boundaries of any Indian reservation, and shall further include all other

persons of one-half or more Indian blood.”

171

It has been argued that the United States

government supported blood quantum requirements for tribal membership with the expectation

that tribes would be watered down through intermarriages, to the extent that earlier treaties

would not have to be honored.

172

To worsen the issue, the BIA is generally not supportive of the expansion of tribal

membership.

173

As a result, to prevent alienation by the department—which may hinder a tribes’

ability to achieve its political goals—many tribes utilize strict membership rules, particularly the

blood quantum rule.

174

Further, some tribes generally don’t prefer expanding membership out of

fear that it may put a strain on the overburdened federal benefits system.

175

The factors outlined above set the stage for many states to adopt blood quantum laws for

determine membership into the tribe. While some tribal constitutions require that blood quantum

165

Id. at 106-107.

166

Spruhan, supra note 162, at 4.

167

Indian Reorganization Act of 1934, 25 U.S.C. §§ 461-494.

168

Thornton, supra note 164, at 106.

169

Id. Language, residence, cultural affiliation, recognition by a community, degree of "blood," genealogical lines of

descent, and self-identification have all been used at some point in the past to define both the total Native American

population and specific tribal populations. Prior to contact with the settlers, tribal boundaries were generally fluid;

intermarriages and alliances were common.

170

Tommy Miller, Beyond Blood Quantum, The Legal and Political Implications of Expanding Tribal Enrollment, 3

AM. INDIAN L. J. 323, 325 (2014), available at https://digitalcommons.law.seattleu.edu/ailj/vol3/iss1/8/.

171

Indian Reorganization Act of 1934, supra note 167, at § 479.

172

Miller, supra note 170, at 325. It is also said that blood quantum laws were enacted to prevent mixed race

people from holding public office or intermarrying with Europeans. Many tribes now require their members to

have a certain blood percentage, or blood quantum that matches that of a specific tribe or simply of Indian

descent.

173

Id.

174

Id. at 343.

175

Id.

match the specific tribe to be enrolled as a member, others require mere blood quantum of

Indigenous descent.

176

For example, the Navajo Nation requires a minimum of twenty-five

percent “Navajo blood,” whereas others “have no minimum blood quantum requirement but

require only a documented tribal lineage.”

177

Yet, despite the issues with tribal membership being dictated by blood quantum laws, any

silver lining produced is left irredeemable for certain Indigenous adult adoptees. Namely, adult

adoptee’s who have enough Indigenous blood to qualify for enrollment in their tribe’s, but do not

have documentation to prove their Indigenous heritage pursuant to the ICWA.

178

And while the

ICWA provides that “states may provide additional rights to adoptees,” necessary to access

adoption records, the outcome is often the same; adult adoptees who seek adoption records for

reasons outside enrollment will have to deal with, generally, more restrictive state laws which

seal adoption records in defiance of the ICWA.

179

However, there are those mixed blood

relatives of adult adoptees who, for various reasons, do not necessarily need to be enrolled into a

tribe, but want to reconnect with their relatives and learn about their Indigenous heritage.

180

will be discussed, there are many reasons beyond tribal membership as to why it is important for

adult adoptees and their descendants to reunite with their families and tribes.

Before moving on, however, it is important to briefly discuss and acknowledge

international law’s nearly analogous response to restore Indigenous adoptees’ access to their

birth records.

V. INTERNATIONAL LAW AND ACCESS TO ADOPTION RECORDS

International law recognizes and purportedly bolsters the rights of children to access their

birth records. Firstly, the United Nations’ Convention on the Rights of the Child (UNCRC)

recognizes the importance for a child to be registered immediately after birth, to have the right

from birth to a name, and to acquire a nationality.

181

Regarding both national and inter-country

adoptions, international law provides for conditional access to adoption records by the adopted

children. Regionally, the Inter-American Convention on Conflict of Laws Concerning the

176

Thornton, supra note 164, at 107.

177

Id.

178

PATRICIA BUSBEE & TRACE HENTZ, CALLED HOME: THE ROADMAP (VOL 2): LOST CHILDREN OF THE INDIAN ADOPTION PROJECTS

(2nd ed. 2016).

179

25 C.F.R. §23.134.

180

This section of the paper is neither arguing for or against expansion of tribal membership; rather, it

demonstrates that the intention to become a tribal member and enjoy the rights flowing from such membership

are not the only grounds on which sealed adoption records should be released.

181

U.N. Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S 3 [hereinafter UNCRC].

Adoption of Minors promotes the secrecy of the adoption while only providing non-identifying

records of the minor’s parents to a “legally appropriate person.”

182

Another international law instrument covering adoptions is the Declaration on Social and

Legal Principles relating to the Protection and Welfare of Children, with special reference to

Foster Placement and Adoption Nationally and Internationally.

183

Regarding access to adoption

records Article 9 of the Declaration says: “The need of a foster or an adopted child to know

about his or her background should be recognized by persons responsible for the child's care

unless this is contrary to the child's best interests.”

184

However, the best interest of the child is just now being exalted. In 2013, the Committee

on the Rights of a Child concluded the right of the child to preserve his, her, or their identity

needs to be respected and taken into consideration when assessing the child's best interests.

185

According to the Committee, the identity of the child includes cultural identity, personality, sex,

sexual orientation, national origin, as well as the child’s religion and belief system.

186

Whether

the right of a child to identity places a duty on State Parties to allow adopted children the right to

have access to adoption records remains unclear. The Hague Convention on the Protection of

Children and Co-operation requires, in respect of Inter-Country Adoption, contracting parties to

ensure the adopted child has access to information concerning the identity of his or her parents,

as well as the medical history, “in so far as is permitted by the law of that State.”

187

It is clear based on its wording that the above international legislation on adoption

envisages access to adoption records by or on behalf of the ‘child’ or ‘minor’ adoptee. While

nothing is explicitly said in international law about access to records by adult adoptees, it can be

inferred that international law leaves it up to a country to determine whether adult adoptees

should gain access to adoption records access or not, which largely mirrors how the United

States’ government has handled the crisis.

VI. ADULT NATIVE ADOPTEES NEED TO RECONNECT FOR “NON-ICWA” REASONS

182

Organization of American States, Inter-American Convention on Conflict of Laws Concerning the Adoption of

Minors, May 24, 1984, O.A.S.T.S Art 7. “Medical background information on the minor and on the birth parents, if

it is known, shall be communicated to the legally appropriate person, without mention of their names or of other

data whereby they may be identified.”

183

U.N.G.A. Res 41/85, Declaration on Social and Legal Principles relating to the Protection and Welfare of

Children, with special reference to Foster Placement and Adoption Nationally and Internationally: resolution /

adopted by the General Assembly, (Feb. 6, 1987).

184

Id. at art. 9.

185

Comm. on the Rights of the Child, GC/14, On the Right of the Child to Have His or Her Best Interests Taken as a

Primary Consideration (May 29, 2013).

186

Id.

187

Hauge Conference on Private International Law, Convention on Protection of Children and Co-operation in

Respect of Inter-Country Adoption (May 29, 1993).

Despite both International and domestic law producing additional barriers for Indigenous

adoptees to reclaim their identities, Indigenous Peoples—as only they can—have persisted.

Through participation in acts of resurgence, Indigenous Peoples have restored their intimate

connection with their homelands, languages, and spirituality, as well as Indigenous traditions of

agency, leadership, decision-making, and diplomacy.

188

Indigenous resurgence is a branch of Indigenous political theory that responds to the

problems of colonial rule.

189

Franz Fanon describes the colonial rule as coercive, violent, and

blatantly oppressive in nature.

190

In practice, Indigenous resurgence counters the colonial legal,

political, and material structures that create a system of domination and subordination.

191

The resurgence of Indigenous political cultures and governances include daily actions

undertaken by Indigenous persons, families, and communities vital to the de-colonial

processes.

192

Despite the vital role Indigenous persons and communities have in the process of

resurgence, their daily actions often go unnoticed or unacknowledged.

193

Here, my argument relies on a rarely acknowledged relationship between decolonization

and acts of Indigenous resurgence to demonstrate how Indigenous driven resistance to colonial

practices define what de-colonialism means for Indigenous Peoples.

194

Conversely, other state

sponsored programs traditionally associated with decolonization continue to push Indigenous

Peoples “towards a state agenda of co-optation and assimilation.”

195

For instance, reconciliation

often lacks relevance to Indigenous communities, and does not adequately support meaningful

restitution to Indigenous Peoples; instead, it simply reinstates the status quo, and assigns little to

no culpability upon the custodians of colonialism.

196

Indigenous resurgence combats state-

sponsored programs by facilitating the implementation of a meaningful and substantive

188

Leanne Betasamosake Simpson, Land as pedagogy: Nishnaabeg intelligence & rebellious transformation, 3

DECOLONIZATION: INDIGENEITY, EDUC. & SOC’Y 1 (2014), available at

https://jps.library.utoronto.ca/index.php/des/article/view/22170/17985.

189

Sharyl R. Lightfoot, The Pessimism Traps of Indigenous Resurgence, in Pessimism in International Relations:

Provocations, Possibilities, Politics, in PALGRAVE STUDS. IN INT’L RELATIONS., at 156 (Tim Stevens & Nicholas Michelsen

eds., 2020) (ebook).

190

Id.

191

Michael Elliot, Indigenous Resurgence: The Drive for Renewed Engagement and Reciprocity in the Turn Away

from the State, 51 CAN. J. POL. SCI. 61, 67 (2017).

192

Suzanne von der Porten et al., The Role of Indigenous Resurgence in Marine Conservation, 47 COASTAL MGMT.

527, 527-47 (2019). In this article, Indigenous resurgence is discussed in the context of restoration and

conservation of both marine and coastal ecosystems.

193

Id.

194

See Jeff Corntassel, Re-envisioning resurgence: Indigenous pathways to decolonization & sustainable self-

determination, 1 DECOLONIZATION: INDIGENEITY, EDUC. & SOC’Y 86, 86 (2012).

195

Id. at 91.

196

Id.

community decolonization process by disrupting physical, social, and political boundaries

designed to impede Indigenous Peoples from restoring their nationhood.

197

Naturally, Indigenous resurgence has many forms; however, chief among them is a

method called “ethnic renewal.” Ethnic renewal is a form of resurgence that takes place at both

the individual and collective level.

198

“Individual ethnic renewal happens when an individual

acquires or asserts a new ethnic identity by reclaiming a discarded identity, replacing or

amending an identity in an existing ethnic repertoire, or filling a personal ethnic void.”

199

Collective ethnic renewal refers to the process of rebuilding an “ethnic community by current or

new community members who build or rebuild institutions, culture, history, and traditions.”

200

The concept, while briefly discussed, provides an important lens to better understand why

access to adoption records for Indigenous adult adoptees is justified outside of reasoning in the

ICWA. When Indigenous adult adoptees’ seek connection with their Indigenous family, tribe,

homeland, and culture, it is individual ethnic renewal, a form of Indigenous resurgence, which is

no less vital to the de-colonial process.

201

The renewal of a lost ethnicity by Indigenous Peoples

involve movement from a dominant ethnic identity (White) to a non-dominant ethnic identity

(Indigenous).

202

This makes Indigenous resurgence distinct from the conventional form of

resurgence, as the latter denotes the assimilation of the minority into a majority ethnic group.

203

Over the past four decades, there has been an increase in the number of people who

identify as Indigenous Americans.

204

Nagel links the increase in the Indigenous population to

individuals who may have ‘passed’ into the “non-Indian” race categories and later laid new

claims to their Indian ancestry.

205

According to this theory, federal Indian policy, American

ethnic politics, and Indigenous American political activism are responsible for encouraging

individuals to claim or reclaim both their ethnic consciousness and their Indigenous American

heritage (individual ethnic renewal).

206

197

Pauline Wakeman, Key Terms: Reconciliation, Indigenization, Decolonization, & Resurgence, 1, 4 (last visited

Dec. 31, 2021), https://indigenous.uwo.ca/docs/Indigenous-Initiatives-Key-Terms.pdf.

198

Joane Nagel, American Indian Ethnic Renewal: Politics & the Resurgence of Identity, 60 AM. SOCIO. R. 947, 948

(1995).

199

Id.

200

Id.

201

Id.

202

Id. at 949.

203

Id. at 948.

204

Id. at 950.

205

Id. The Census Bureau introduced a system of racial choice which permitted individual, racial self-identification.

This move signaled a departure from the previous system of ascription, which allowed enumerators to ascribe

race, and allowed individuals to pick a race that they believed best suited them. The number is even said to have

gone from five million in 2010, to nine million in 2020.

206

Id.

The above analysis fits into the current discussion as adult Indigenous adoptees are some

of those informally laying claim to their Indigenous heritage and resisting assimilation.

207

There

are psychological, existential, and sociological factors which potentially trigger the need for

Indigenous adoptees to reconnect with their heritage. These factors plausibly account for the

increase in the number of people identifying as Native American in censuses.

A. Psychological Factors Triggering the Need for Reconnection

Developmental psychologists have theorized the transition to the original identity by

African and Black Americans, Asian Americans, Mexican Americans, or biracial peoples in

general; however, there is very limited scholarship on the same subject in relation to Native

Americans.

208

One scholar, Devon Mihesuah, advanced the “Cycles of Nigrescence” to consider the

various elements that influence the identity choices of persons who claim to be racially and/or

ethnically American Indian.

209

A psychological approach is relevant to the present analysis as it

gives insight into how psychology illuminates the need for reunification by Indigenous American

adoptees who grew up in White families.

This table presents the possible psychological processes that Native Americans adoptees

go through as they pursue their Indigenous cultural identity.

210

Table 1.3

Stage

Life Experience

Effects on Building Individuals Identity

Stage 1

Pre-encounter

●

Growing up in White adoptive families as

Indigenous.

●

Very limited knowledge about tribal history, culture,

or politics.

207

See infra-Table 1.3, at 29-30.

208

Devon A. Mihesuah, American Indian Identities: Issues of Individual Choices & Dev., 22 AM. INDIAN CULTURE &

RSCH. J. 193, 194 (1998).

209

Id.

210

Id.

Stage 2

Encounter

●

Develops curiosity upon realizing that they are

different from the parents and other white children/

neighbors.

●

Feels unfulfilled by lack of knowledge and connection

to their Indigenous culture and becomes increasingly

interested in meeting their extended family and

learning more about their people.

●

A particular encounter will trigger the adoptee into

becoming more Indigenous or rediscover their

Indigenous heritage (i.e., learning from an informed

teacher or taking a visit to the archives to see cultural

objects).

●

Usually, at this stage Indigenous adoptees accept the

identity that society assigns to them based on their

racial identity.

●

Some Indigenous adoptees may identify as biracial,

retain the

white culture while also embracing Native cultural

practices.

Stage 3

Immersion-

Emersion

●

This is a volatile stage for Indigenous adoptees,

where they experience feelings of anxiety depression

and frustration as they try to become the ‘right

Indian’

●

May take part in aggressive behavior in protest

against

racial injustices

Stage 4

Internalization

●

At this stage individual generally develop inner

security about their identity and develop the ability to

co-exist with other races.

●

However, for Indigenous Americans, being at peace

with their identity is usually a case-by-case basis

situation, some have reportedly

suffered

from

identity

crisis

caused

by intergenerational trauma.

B. Existential Factors

When individuals search for their ethnic identity, they become self-aware of their desire

or need to find their ethnic identity and must choose whether to engage to engage with their

struggle for existential freedom, choice, and authenticity.

211

There are four main existential

211

Kevin A. Fall & Gail Roaten, An Existential Approach to Adoptive Identity Development in Adulthood, 20 Fam. J.

441 (2012).

concerns that may provide adult adoptees a need to reconnect with their Indigenous heritage:

death, isolation, freedom, and feelings of meaninglessness.

212

Adult adoptees who accept death—and the ambiguity it brings—come to terms with their

own mortality and understand the importance of a meaningful life within a general stream of

time, temporality, and continuity that concerns human beings.

213

This propels adoptees to pursue

self-awareness and identity to demystify the mystery surrounding their origins and find

acceptance from their blood relatives.

214

Existential isolation acknowledges the concept that while human beings are inherently

independent, they endeavor to establish connections with others.

215

For adoptees, the original

connection is dissolved when they separate from their biological mother, provoking a sense of

loss at an early stage.

216

This explains why some adoptees start to show signs of wanting to trace

their biological and cultural roots at a young age.

217

Most adoptees who choose to search for their biological mothers have resigned

themselves to the reality that the search may increase the complexity of their situation; the

biological parents may not be willing to reunite, are late or if they yield nothing.

218

The search

for information about biological parents by adoptees is an attempt to establish meaning in their

lives by making sense of their experiences due to anxiety, existential isolation, and inherent

freedom.

219

C. Sociological Factors

Sociological factors may also influence the decision of adult adoptees seeking access to

adoption records that connect them with their relatives, chief among these are the revelation of

adoptive status and life experiences encountered in the adoptive family.

220

Adoptive parents play

a significant role in fulfilling the adoptees desire to know their biological family or obtain

information about their birth parents or origins.

221

Generally, when information regarding an individual’s adoption is revealed to adoptive

children, it generates the curiosity to find out more about their birth family.

222

For Indigenous

212

See e.g., Id.

213

See e.g., Id.

214

See e.g., Id.

215

See e.g., Id.

216

See e.g., Id.

217

See e.g., Id.

218

See e.g., Id.

219

See e.g., Id.

220

Michael Sobol & Jeanette Cardiff, A Sociopsychological Investigation of Adult Adoptees’ Search for Birth Parents,

32 FAM. REL. 477, 447-83 (1983).

221

Lee H. Campbell et. al., Reunions between Adoptees and Birth Parents: The Adoptees’ Experience, 30 SOC. WORK

329, 329 (1991).

222

Id.

American and other transracial adoptees, the racial and other physical differences generate said

curiosity at an early stage, even without the disclosure of their adoptive status.

223

Scholars place adoptive families into three systems contingent on how they respond to

the adoptive child’s desire to contact their birth parents: (1) closed family system (2) divided

family system, and (3) open family system.

224

A closed family system typically prevents the

adoptive child from tracing their biological and cultural origins or, in cases where the adoptive

child had the slightest knowledge about their heritage, the child is encouraged to renounce it.

225

These parents feel betrayed when the child shows signs of wanting to reunite with their family,

and causes adoptees to suppress their urge to find out more about who they are in fear of being

perceived as disloyal, or even being disowned by their adoptive parents.

226

Accounts shared by adult Indigenous adoptees who end up searching for their adoption

records reveal that the white families into which they were adopted were closed family

systems.

227

For example, one Indigenous American adoptee grew up being told he was French

Canadian by his adoptive father, only to learn about his true Indigenous ancestry at thirty-two

years old.

228

The adoptive parents would normally not want to associate the adoptive child with their

Indigenous heritage due to its perceived inferiority and insufferable nature.

229

In situations where

little information regarding adoption was shared, it would usually be demeaning to either the

biological parents or Indigenous relatives of the adoptee, or both.

230

Adoptees who are adopted into the divided family system experience either one parent

who is accepting and supportive of a reunion while the other is apprehensive and rejects the idea

or has divided feelings about the child’s intentions to reunite.

231

The absence of both adopting

parents’ support often deter the adoptee from initiating a search for their biological parents,

fearful and cognizant of the rift that may produce between their adoptive families.

232

Adoptive

parents who held a different view about Native Americans, divergent from the conventional

stereotypes associated with Indians were usually open to the idea of reunification.

233

The last group of adoptees are those in an open family system where adoptive parents are

open and supportive to the adoptee's desire to find their birth parents and relatives.

234

In some of

these systems, the adoptive family usually develops a close relationship with the birth child’s

223

Id.

224

E.g., HARNESS, supra note 134.

225

See Campbell, supra note 221, at 332.

226

Id.

227

Id. at 331.

228

E.g., HARNESS, supra note 134.

229

See Campbell, supra note 221, at 332.

230

E.g., HARNESS, supra note 136.

231

Campbell, supra note 221, at 329.

232

E.g., HARNESS, supra note 136.

233

E.g., Id.

234

Campbell, supra note 221, at 331.

birth parents. Adoptive parents in the open family system may admittedly be supportive of their

Indigenous adoptive children’s need to learn about their heritage and in some instances helped

them become enrolled members of their Tribe. Nonetheless, one shared experience by Native

adult adoptees across the three adoptive family systems is a sense of alienation and

dislocation.

235

However, there is no clear answer as to why adoptive families fall into one of three

systems. The attitudes of an adoptive parent and adoptee toward locating birth parents varies for

many reasons. Negative life experiences encountered during childhood often intensify the need

for belongingness in some adoptees.

236

For Indigenous American adoptees, racism experienced

within the adoptive family, school, or the predominantly White community they grew up are the

most common negative experience that triggers the need for belongingness and acceptance from

those who look like them.

237

Some adoptive parents felt that Indigenous adoptees were subservient to the “blonde

haired blue eyed” child that they had always fantasized about having and produced feelings of

contempt towards the adoptive Indigenous child.

226

Another Indigenous American adult adoptee

had the following to say regarding his experience:

I also know that words cut more deeply than any physical object

bruises… I was routinely informed how stupid and worthless I

was, and how I would end up in prison. From my genetics to my

appearance to my intellect, it was made clear to me how inferior I

was. I could do their work, empty their garbage, wash their dishes,

and do their manual labor on a roof, but I would never be one of

them.

238

Indigenous American adoptees experience racism in society as well and are subject to

both emotional and physical bullying for being ‘different.’

239

And for reasons unexplained, but

no doubt a result of the trauma faced by Indigenous adoptees, some adoptees fear the risk of

entering incestuous relationships or marriages if their family tree is not disclosed to them.

240

Additionally, medical crises create the need for information about biological relatives, such as

235

E.g., HARNESS, supra note 136.

236

Sarah Wright Cardinal, Beyond the Sixties Scoop: Reclaiming Indigenous identity, reconnection to place, and

reframing understandings of being Indigenous (2017) (Ph.D. dissertation, University of Victoria) (on file with the

author).

237

Id. at 4; see also TEDx Talks, Susan Devan Harness: Adopting a child of a different race? Let’s Talk, YOUTUBE (July

25, 2019), https://www.youtube.com/watch?v=uORk3TGSCl4.

238

See BUSBEE & HENTZ, supra note 178, at 11-15.

239

Id. at 91-97.

240

Susan E. Simanek, Adoption Records Reform: Impact on Adoptees, 67 MARQ. L. REV. 110, 120 (1983).

inheritance proceedings, religion, and the general quest for closure.

241

Allowing adult Indigenous

adoptees access to records will address the psychological trauma and genealogical bewilderment

caused by an unfulfilled, and often stifled desire to reunite with their birth families.

242

VII. INDIGENOUS DATA SOVEREIGNTY AND INDIGENOUS RESISTANCE TO

ASSIMILATION

However, the difficulties and resulting trauma faced by Indigenous American adoptees

during both childhood and adulthood may be remedied, in part, through Indigenous data

sovereignty. This idea refers to the right of each tribe to control the collection, ownership, and

application of its own data.

243

Indigenous data includes, “any facts, knowledge or information

about a Native nation and its tribal citizens, lands, resources, cultures, and communities.

Information ranging from demographic profiles to educational attainment rates, maps of sacred

lands, songs, and social media activities among others.”

244

Of relevance to this discussion,

Indigenous data also refers to official records, including “statistics and the registry of personal

data—such as identity, education degrees, health records, and property.”

245

Scholars have begun to draw on Indigenous rights enumerated in the United Nations

Declaration on the Rights of Indigenous Peoples (UNDRIP)

246

to refine the definitions, concepts,

theory, and application of Indigenous data sovereignty.

247

So far, fourteen articles of the

UNDRIP have been associated with Indigenous data sovereignty.

248

Scholars have invoked these

fourteen articles to protect Indigenous People’s rights over their DNA samples collected through

genomic research,

249

to promote Indigenous nations’ control over their data for governance and

decision making,

250

and to safeguard Indigenous rights over data for the protection and

development of cultural heritage and attending knowledge systems.

251

241

Id.

242

Id.

243

Stephanie Russo Carroll, et al., Indigenous Data Governance: Strategies from United States Native Nations, 18

DATA SCI. J. 2019 at 1, 1.

244

Id. at 2.

245

Joxerramon Bengoetxea, Data Governance in the Basque Country, Victims & memories of violent conflicts, in

INDIGENOUS DATA SOVEREIGNTY & POL’Y 112, 118 (Maggie Walter, et al., eds., 2021).

246

G.A. Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples (Sept. 13, 2007) [hereinafter

UNDRIP].

247

Leonard Mukosi, Indigenous Data Sovereignty: Origins and Implications for The United Nations Declaration on

the Rights of Indigenous Peoples, 7 INDIGENOUS PEOPLES’ J. LAW, CULTURE, & RESISTANCE (forthcoming Dec. 2022).

248

Id.

249

Nanibaa’ A. Garrison, et al., Genomic Research Through an Indigenous Lens: Understanding the Expectations, 20

ANN. REV. GENOMICS & HUMAN GEN. 495, 497 (2019).

250

See Carroll, supra note 243, at 2.

251

Id.

The present discussion constitutes a groundbreaking effort to focus on colonial control of

Indigenous children adoption records and its implications on Indigenous Peoples right not to be

subjected to forced assimilation or destruction of their culture.

252

1. Indigenous peoples and individuals have the right not to be

subjected to forced assimilation or destruction of their culture

2. States shall provide effective mechanisms for prevention of, and

redress for:

(a)

Any action which has the aim or effect of depriving them of their

integrity as distinct peoples, or of their cultural values or ethnic

identities;

(b)

Any action which has the aim or effect of dispossessing them of

their lands, territories or resources;

(c)

Any form of forced population transfer which has the aim or effect

of violating or undermining any of their rights;

(d)

Any form of forced assimilation or integration;

(e)

Any form of propaganda designed to pro-mote or incite racial or

ethnic discrimination directed against them.

253

Indigenous Peoples right to not be assimilated is also recognized in the American

Declaration on the Rights of Indigenous Peoples: “Indigenous peoples have the right to maintain,

express, and freely develop their cultural identity in all respects, free from any external attempt

at assimilation. States shall not carry out, adopt, support, or favor any policy of assimilation of

indigenous peoples or of destruction of their cultures.”

254

However, Indigenous peoples have long fought back against colonial assimilation. As

mentioned earlier, the channeling of Indigenous American children through the child welfare

system into White families became the convenient, insidious mode of assimilation that replaced

sending Native children to boarding schools—and produced many Indigenous movements in

resistance.

255

Indigenous Peoples’ unrelenting fight against assimilation predates the ICWA,

UNDRIP or the American Declaration; in 1894, a group of Hopi men in Arizona refused to send

their children to residential schools..

256

The defiance of those Hopi men inevitably spurred the

252

See UNDRIP, supra note 246, at art. 8.

253

Id. at art. 8.

254

Organization of American States, American Declaration on the Rights of Indigenous Peoples, O.A.S. AG/Res.

2888, art. X (2016).

255

Erin Blakemore, A Century of Trauma at U.S. Boarding Schools for Native American Children, NAT’L GEO. (July 9,

2021), https://www.nationalgeographic.com/history/article/a-century-of-trauma-at-boarding- schools-for-native-

american-children-in-the-united-states.

256

Id.

Red Power Movement in the 1960s which pushed for Indigenous American sovereignty and

inspired dismantlement of the residential school system.

257

Nonetheless, assimilative efforts in the context of data have maintained colonialists’

stronghold over Indigenous sovereignty and actualization. Assimilation through the IAP thrived

on the sealing, destroying, alteration, or collection of Indigenous birth records.

258

Indigenous

birth parents’ names were replaced by adoptive parents’ names, which resulted in the adoptees’

birth names being changed.

259

This was done not only to destroy the adoptive children’s past, but

to erase Indigenous identity and tear apart Indigenous communities.

260

However, Bengoetxea posits that the purpose for which data is collected and processed

depends on the type of data in question, the techniques used, and who decides about the

knowledge and authority issues.

261

Official identity information like Indigenous Americans’ birth

and family records contain information on and about the Individual adoptee which is necessary

for them to access and make use of.

262

Regrettably, most Indigenous American adoption records are still being held by non-

tribal entities and continue to be regulated under state laws which seal or restrict access

thereto.

263

Indigenous data sovereignty challenges such colonial legacies inherent in the ways

which data about Indigenous Peoples continue to be handled by non-tribal entities, mostly

government agencies today.

264

A. Personal Narratives from Survivors of the IAP

While legal and administrative barriers have persistently precluded Indigenous American

adoptees from regaining access to and control of their adoption records, adult adoptees have not

remained idle. Indigenous adoptees are not only rebuilding their identities; they are also creating

narratives detailing how they have individually resisted assimilation and reclaimed their

Indigenous identities notwithstanding the absence of the vital information linking them to their

birth families. Valuing ways Indigenous adoptees have countered assimilation is necessary for

building data decolonization strategies that are informed by the experiences of those who bear

the scars of data extraction practices which occur in the framework of historic colonialism.

257

Ranjani Chakraborty, How The U.S. Stole Thousands Of Native American Children: The Long And Brutal History

Of The U.S. Trying To “Kill The Indian And Save The Man,” VOX (Oct. 14, 2019),

https://www.vox.com/2019/10/14/20913408/us-stole-thousands-of-native-american-children.

258

Id.

259

Id.

260

Id.

261

Bengoetxea, supra note 245, at 118.

262

Id.

263

Id.

264

See e.g., RAINIE, supra note 39.

Mussi argues that Indigenous storytelling serves two transformative purposes: (1)

offering healing to Indigenous readers, and (2) promoting social justice by giving the non-

Indigenous reader a deeper understanding of the past and ongoing injustices that have affected

Indigenous communities.

265

Simply put, healing happens when Indigenous survivors of trauma

and intergenerational trauma narrate their experiences either orally or through writing, or both.

266

Currently, Indigenous stories function as a generous reminder to similarly situated Indigenous

survivors, who are out of reach, or whose accounts cannot be shared due to different

circumstances, that their experiences are true and worth listening to.

267

However, to effectively

advance healing through Indigenous narratives, the story must bring the possibility of making

connections with the ancestral land which many Indigenous Peoples have lost connection to.

268

Nonetheless, Indigenous storytelling remains an unacknowledged political tool that is

crucial to the advancement of an Indigenous led decolonization.

269

This argument is advanced by

Sium and Ritskes who probes into the expectations of Indigenous Peoples with regard to

decolonization by listening to Indigenous narratives.

270

The authors make the stunning discovery

that, “stories are decolonization theory in its most natural form.”

271

Far from the authors’

anticipations, Indigenous Peoples are theorizing and enacting decolonization in their

communities through storytelling, defying Eurocentric norms of knowledge production.

272

Indigenous storytelling stands up to the dominant imaginations of theory, which dismissed

Indigenous communities as a viable “loci of decolonization theory.”

273

Indigenous storytelling further challenges Western academic hegemony and stands at

odds with it because stories bear the inherent voices of Indigenous survivors who share their

personal experiences.

274

This very fact invalidates the colonial epistemic frame which thrives on

the so-called objectivity and homogeneity that work against Indigenous Peoples.

275

For this

reason, story-based knowledge imparted by Indigenous Peoples is often expelled from

mainstream academia for “not being rigorous enough or as identity politics.”

276

265

Francesca Mussi, Land and Storytelling: Indigenous Pathways Towards Healing, Spiritual Regeneration &

Resurgence, J. COMMONWEALTH LIT. 2017, 1, at 1.

266

Id. at 9.

267

Id. at 12.

268

Id. at 14.

269

Aman Sium & Eric Ritskes, Speaking truth to power: Indigenous storytelling as an act of living resistance, 2

DECOLONIZATION: INDIGENEITY, EDUC. & SOC’Y I, I (2013).

270

Id. at II.

271

Id.

272

Id.

273

Id.

274

Id. III; see generally C. Susan Caxaj, Indigenous Storytelling & Participatory Action Research: Allies Toward

Decolonization? Reflections From the Peoples’ International Health Tribunal, GLOB. QUAL. NURSING RSCH. 2015, 1.

275

Sium & Ritskes, supra note 269, at II.

276

Id.

To an Indigenous storyteller, the unhindered ability to articulate personal experiences

with colonialism is empowering. The courage it takes to share the harrowing, and sometimes

unknown personal encounters with colonialism empowers the Indigenous storyteller as agentic

and a participant in the process of production of knowledge.

277

By reinstating the pre-colonial

status of storytellers as knowledge keepers, Indigenous communities reclaim their epistemic

ground which the mainstream academy has nullified.

278

Notably, there are progressive academic movements that embrace the integration of

Indigenous storytelling into mainstream academic research, at the same time underlining the

positive results it yields. Caxaj argues that “Indigenous storied methodologies can help develop

rich, locally relevant insights that may better guide culturally responsive understanding of health

experiences.”

279

Her hypothesis complements those of Mussi, Sium, and Ritskes, and

demonstrates the importance of story-based knowledge to the advancement of social justice and

the development of an Indigenous-led decolonial theory.

280

The underlying theme featured in the testimony shared by Indigenous Peoples

individually or collectively is the ongoing struggle with the colonial system, sometimes at a very

personal level. This, however, should not justify the unsophisticated relegation to poignant

archives of personal pain that Indigenous testimonies have endured at the hands of the

mainstream notions of theory.

281

Besides the unimaginably outrageous and emotionally

triggering content, Indigenous testimonies embody the genuine accounts of active resistance to

settler colonial practices, and a calculated gesture to restore Indigenous connection with the

land.

282

Richard Wagamese, an Indigenous intergenerational trauma survivor, tells a fictional

story about the emotional trauma inflicted on generations of Indigenous families by the Indian

Residential System (IRS) in Canada.

283

The story goes beyond unearthing the spiritual,

emotional, cultural, and physical wounds that survivors of the IRS and their descendants

continue to nurse. It casts light on the active resistance by the survivors of the IRS, of which

even the Truth and Reconciliation Commission had not focused on.

284

Portraying an Indigenous

narrator who, despite being robbed of his opportunity to experience traditional Indigenous ways

and connect to the land because of the IRS, resisted the legacy of colonialism and restored his

lost connection with his Indigenous communities and land.

285

The resistance portrayed through

Indigenous accounts may even be physical and confrontational in nature. For example, the oral

testimonies about the active resistance of Indigenous Peoples in the Western highlands of

277

Id. at V.

278

Id.

279

Caxaj, supra note 274, at 1.

280

Id.

281

See e.g., Sium & Ritskes, supra note 269.

282

See e.g., Id.

283

Mussi, supra note 265, at 2.

284

Id.

285

Id.

Guatemala to mining operations, which rendered them vulnerable to state sponsored brutality,

affirms the notion.

286

It should not come as a surprise therefore that a growing number of adult Indigenous

American adoptees and their descendants maintain, perhaps even nurture traditional Indigenous

ways of being and living through sharing their personal experiences. Despite being personal, the

stories shared by adult adoptees speak to the pain that Indigenous Peoples individually and

jointly experienced because of the aggressive separation of Indigenous families carried out

through adoption. Using various participatory mediums, adult Native adoptees’ have provided

first-hand accounts of: 1) the harrowing accounts of racism which extended beyond the walls of

adoptive families to the white dominated schools and communities they lived in; 2) the

complexities associated with accessing adoption records which continue to preclude adult Native

adoptees from reconnecting with their Indigenous families, traditions and land; 3) the

psychological trauma adult adoptees have suffered, and continue to suffer as a result of 1 and 2;

and 4) success stories about reunification with biological families/tribes and learning their

cultures and traditions.

In accordance with Musi’s theory, the stories shared by adult adoptees serve to validate

accounts by similarly situated adult adoptees who have not had the chance or are not ready to

share their stories.

287

Furthermore, these stories advance social justice by divulging to the non-

Indigenous reader or listener the little-known details of the IAP and exposes the physical and

emotional trauma it inflicted on Indigenous American children and communities.

288

Sium and Ritskes’ hypothesis that “[s]tories are de-colonial theory in its most natural”

form is validated by how the personal accounts of Indigenous adult adoptees enshrine their stark

resistance to assimilation.

289

This form of resistance counters ‘data colonialism’ which happened

through the extraction, alteration, and destruction of adoptees’ records to wipe out Indigenous

identities. Today, such appropriation of data has expanded in both scope and purpose through the

instrumentality of technology.

290

I focus on adult Native adoptees’ success stories for two reasons: First, calling attention

to adult adoptees’ courageous reclamation of identity in the face of psychological trauma, as well

as administrative, legal, and other barriers, debunks the dominant narrative which often relegates

Indigenous Peoples to sheer victims of colonialism.

291

Such resistance to assimilation is rooted in

data sovereignty as it resists the very purpose for which birth records were collected, altered

destroyed, or sealed; it further empowers Indigenous People to shape their own narrative through

story telling. Second, adult Indigenous adoptees' stories respond to the gap in adoption record

286

Id.

287

Id.

288

Id. at 9.

289

Sium & Ritskes, supra note 269, at II.

290

Meijas & Couldry, supra note 4.

291

Sium & Ritskes, supra note 269, at II.

management, which is mainly affecting adoptions that took place prior to 1978.

292

Most of the

personal accounts shared by adult Indigenous adoptees provide not only healing, but also contain

information that is useful to similarly situated adult Native adoptees wanting to find their Native

families and tribes, which cannot be found on other dominant, non-Indigenous platforms of

information.

By virtue of bearing crucial information, success stories by adult Native adoptees reclaim

and reenact Indigenous epistemic competence that was denied, minimized, or invalidated by

colonial legal principles such as terra nullius.

293

The above argument would be incomplete without stressing that the potential questioning

of the validity of adult Native adoptees personal accounts as a reliable source of information

would be an intellectually dishonest attempt to undermine Indigenous ways of knowing.

Here, stories by Native adoptees are rendered useful as a culturally responsive way of

sharing information relevant to similarly situated Native adoptees, who have been let down by

non-Indigenous so-called formal sources of information. I relied on five personal accounts

shared by adult Native adoptees’ who were adopted prior to the ICWA. The first of these

narratives is a more empirical account than the subsequent ones. The first account was shared to

me during a telephone interview by an adult Native adoptee who, despite still nursing the

psychological wounds inflicted by his adoption, was brave and generous enough to revisit his

triggering experiences.

The second is a comprehensive narrative encapsulated in a twenty-six chapter novel by

Suzan Harness, who was adopted in 1959 during the height of the IAP.

294

Using first person

narrative and flashback, Harness' story evocatively invites the non-Indigenous reader into the

chaotic lives into the chaotic lives that most Native adoptees were exposed to in white families

during that time.

295

Third, I use three personal accounts shared by adult Indigenous adoptees and

published in a compilation authored by Patricia Busbee and Trace L. Hentz.

296

I refer to adult Indigenous adoptees as Subject Matter Experts (S.M.E.) In table 1.3. Each

of the five accounts shared by the S.M.E is broken down into five categories that is: 1) the

adoptive family system in which each adoptee was raised; 2) the steps taken by the adoptee in

finding their adoption records; 3) the steps taken by the adoptee to reconnect with their birth

family; 4) the effort to reconnect with the tribe and its culture; and 5) the psychological effects of

separation on each adoptee.

The process of reconnecting with Native families and tribes is not without challenges for

most S.M.E.s. It is hard for S.M.E.s to rebuild lasting relationships with their birth families who

they never shared memories with. S.M.E.s are also the victims of misconceptions. One such

292

Id.

293

Sium & Ritskes, supra note 269, at II.

294

E.g., HARNESS, supra note 136.

295

E.g., Id.

296

See BUSBEE & HENTZ, supra note 178.

misconception is that Indigenous Americans who were adopted out as children lack an

understanding or connection with tribal cultures and history, and only intend to associate with

the tribe to benefit from the tribes’ already overburdened resources.

297

S.M.E.

Tribal

Affiliation

Adoptive

Family

System

Finding

Adoption

Records

Reconnecting

with the

Birth Family

Reconnecting

with the

Tribe

Effect(s) of

Their

Separation

SME #1:

Adopted

from the

Cowlitz

Indian

Tribe.

298

Open:

Grew up

with

knowledge

of his

adoption.

Contacted

the social

welfare

office to

access his

adoption

records to

no avail.

However,

his son was

able to

access

them.

Tried to

contact

relatives but

was

unsuccessful;

"the first time

I visited, I

pulled up on

my uncle

beating his

child and I

had a fight

with him.”

299

Attended

tribal council

meetings in

his pursuit of

tribal

enrollment.

Maintains a

psychological

stress due to his

unfulfilled quest

to belong.

SME #2:

Adopted

from the

Confederated

Salish and

Kootenai

Tribes.

Mixed:

Adoptive

father

concealed

details

about her

birth

parents and

did not

want her to

search.

However,

her

adoptive

When left

alone in a

social

worker’s

office, she

opened a

file

containing

extensive

details

about her

adoption

and her

primary

Wrote a

response to a

letter she

received from

the editor in

the tribal

newspaper

which

dismissed

Indigenous

peoples who

grew up in

White

communities

Made

attempts to

find a job on

the

reservation

and to visit

the

reservation to

look for

familiar faces.

She attended

her first

powwow as

an adult on

Could not build

strong

relationships

with her birth

mother or

siblings due to

her mother’s

alcoholism and

inability to

connect

emotionally

with her

siblings. Her

own children, as

297

See e.g., Id.

298

Telephone Interview with Mr. Dobson, Indigenous Adult who was adopted in 1961 (Oct. 20, 2021).

299

Id.

mother was

supportive.

relatives

(i.e.,

mother,

father, full

and half

siblings).

as not

Indigenous

enough. The

letter got the

attention of

her biological

siblings who

have been

looking for

her since

1993. As a

result, she

met her

biological

mother.

Flathead

Indian

Reservation.

a result, became

victims of

intergenerational

trauma.

SME #3:

Adopted

from the

White Earth

Anishinaabe

Tribe.

Open:

Adoptive

parents

were

supportive

of her

desire to

find her

birth

family.

300

After failing

to locate

identifying

information

from the

adoption

agency, she

contacted a

private

party to

assist her

locate her

biological

family.

301

She met her

birth mother

and siblings

and was able

to build a

relationship

with them.

302

Prior to

finding her

family, she

took Ojibwe

language

classes as an

adult, in

addition to

attending

powwows and

other

traditional

Ojibwe

events.

303

She has Post

Traumatic Stress

Disorder

(PTSD) due to

the abuse she

received

growing up in

an adoptive

family.

304

SME #4:

Adopted

from the

Koyukon

Closed:

Adoptive

parents

never

She took a

DNA test

and found

that she had

She contacted

her Koyukon

Athabascan

family

She visited

the river

where her

birth father

Nothing is

known

regarding the

300

BUSBEE & HENTS, supra note 179, at 17-25, Elizabeth’s Story.

301

Id.

302

Id.

303

Id.

304

Id.

Athabascan

Peoples.

informed

her she was

adopted.

305

forty-eight

percent

Indigenous

American

heritage.

This

prompted a

multi-

month

search for

her birth

mother on

the

internet.

306

members and

learned about

her deceased

birth father.

307

lived and

died.

Attended a

summer

potlach and

met with

Indigenous

elders and her

cousins.

308

psychological

effects on her.

SME #5:

Adopted

from the

Cherokee

tribe, but

subsequently

found out she

had more

Choctaw

blood.

309

Open:

Adoptive

parents

informed

her that she

was

Cherokee

Indian and

Irish.

310

Had partial

legal

paperwork

from her

adoption.

311

She joined a

“Yahoo!”

group called

‘Soaring

Angels.’ She

created an

Ancestry.com

account and

found

information

about her

birth

mother.

312

She makes

beads and

medicine bags

for sale on

Indigenous

land. She also

attends

powwows.

313

She suffers from

PTSD because

of mental,

physical, and

sexual abuse she

experienced in

an adoptive

family.

314

VIII. RECONCILING THE INDIVIDUAL AND THE COLLECTIVE THROUGH REBUILDING LOST

INDIGENOUS IDENTITIES

305

Id. at 41-46, Mary’s Story.

306

Id.

307

Id.

308

Id.

309

Id. at 145-53, Karen’s Story.

310

Id.

311

Id.

312

Id.

313

Id.

314

Id.

Harmonizing the conflict between Indigenous collective rights and individual human

rights is a subject of ongoing debate—a debate which often perpetuates colonialist assumptions.

Most of the world’s domestic legal systems, including nations like the United States, are

focusing efforts on the protection of individual rights. Conversely, International law does not

prescribe how the rights of individuals can be negotiated within collective or group interests. The

colonial exclusionary and assimilative lens through which contemporary scholarship tends to

negotiate Indigenous collective rights and individual human rights often falls short of addressing

the conflicting interests that often arise between these two.

Indigenous groups have a shared heritage, history, culture, language, land base, and set of

traditions. By virtue of this common identity, claims advanced by Indigenous groups locally or

internationally are generally regarded as emanating from collective, shared interests.

315

It is from

this premise that the theoretical understanding of Indigenous rights as collectives is formed;

Indigenous Peoples share connection to the land, and the corresponding collective land rights

that flow from it.

316

The collective nature of Indigenous Peoples’ interests is often interpreted as

contrary to the dominant normative framework supporting the current theory and practice of

international human rights.

317

Dating from the post-World War II period, international law has

embraced a regime of individual rights as sufficient for attaining a viable international legal

order.

318

This explains international human right law’s inclination toward individualistic

language to protect ‘populations’ and ‘persons’ who are ‘members’ over populations.

319

The Universal Declaration of Human Rights, the first international human rights

instrument which sought to universally protect fundamental human rights, embodies such bias

toward an individualized right theory. The Declaration makes no recognition of group rights but

recognizes the rights of persons, and ‘members’ of the society.

320

In the same vein, the

International Covenant on Civil and Political Rights (ICCPR) uses individualistic language and

accords cultural rights only to ‘persons’ belonging to minorities, and ‘members’ of the group, not

the group as a whole; States in which ethnic, religious, or linguistic minorities exist, persons

belonging to such minorities shall not be denied the right, in community with the other members

315

First Nations Individual Rights v. Collective Rights, INDIGENOUS CORP. TRAIN., (Sept. 11, 2015),

https://www.ictinc.ca/blog/first-nations-individual-rights-vs-collective-rights (last visited Dec. 31, 2021).

316

Allen Buchanan, Role of Collective Rights in the Theory of Indigenous Peoples’ Rights, 3 TRANSNAT’L L. & CONTEMP.

PROBS. 89, 108 (1993).

317

Id. at 91.

318

Id.

319

See e.g., Cindy L. Holder & Jeff Cortassel, Indigenous Peoples & Multicultural Citizenship: Bridging Collective &

Individual Rights, 24 HUM. RIGHTS Q. 126 (2002).

320

See generally G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).

of the group, to enjoy their own culture, to profess and practice their own religion, or to use their

own language.

321

To remedy the shortcomings of current international human rights law, the United

Nations General Assembly adopted UNDRIP.

322

The UNDRIP explicitly recognizes Indigenous

Peoples’ collective right to protection from state action that could undermine an Indigenous

group's ability to remain a culturally distinct people.

323

Despite its recognition of collective

rights, the UNDRIP does not prescribe how such group rights can be harmonized with the

dominant legal order which is only supportive of individual rights.

324

A. Scholarly Approaches to Reconciling Individual and Collective Indigenous Interests

Considering the scanty international human rights framework on harmonizing individual

and collective rights, contemporary scholars have advanced theoretical approaches, which

prescribe how collective rights can be incorporated into the human rights discourse.

325

Holder

and Corntassel classify these theoretical accounts in two main categories, which represent

extremes on a continuum: the liberal individualist and corporate theories of group rights.

326

Every other school of thought on group rights develops from either of these two categories.

327

Liberal individualist theories regard fundamental individual interests as the basis for

according the status of a right to group claims.

328

Collective claims under liberal individual

school of thought are only justifiable in so far as they advance an individual fundamental

interest.

329

Applying this line of thinking to the situation of adult Indigenous adoptees, the

collective interests of a tribe in welcoming their lost generations or a specific adoptee can only

be recognized as a right if reunification with the tribe contributes to the individual adoptee’s

psychological or moral development.

While the liberal individual approach acknowledges the interest that an individual has in

a group, the limitation of this theory lies in its failure to acknowledge the interest that collectives

may have in their individual members.

330

While adult Indigenous adoptees have an interest in

connecting with their tribes, culture, traditions and land, this individual interest cannot be fully

321

G.A. Res. 2200A (XXI), at art. 2, 4, International Covenant on Civil and Political Rights (Dec. 16, 1966)

[hereinafter ICCPR]. Indigenous peoples are distinct from “minority groups” or other “national groups” due to their

original occupation of traditional homelands, historical continuity, unique cultural practices, non-dominance, and

group awareness.

322

UNDRIP, supra note 246.

323

Id.

324

Id.

325

See e.g., Holder & Corntassel, supra note 319, at 131.

326

Id.

327

Id.

328

Id.

329

Id.

330

Id. at 129.

realized if it is not met by a corresponding group interest in having their stolen generations

readmitted back into the group. While such collective interest in welcoming adoptees may be

present, technical, and legal barriers rooted in the colonial thinking may derail the individual

interest to become a member of the tribe or group.

331

As self-determining entities, each Native American tribe has a collective right to self-

governance which empowers them to govern enrollment and disenrollment of members.

332

For

most tribes, such interest is enshrined in tribal constitutions in form of some criteria for

enrollment.

333

In order for an adult Native American adoptee’s individual interest in becoming a

member of a tribe to be successfully realized, it has to meet the tribe’s criteria which reflects the

tribes’ collective interest in governing membership.

334

For instance, one of the stories shared by

an adult adoptee, who only knew the tribe he was from, showcased how his independent

genealogical research unearthed information to establish lineal descendance, and ultimately

enroll in the Cowlitz Indian Tribe because the tribe’s effort to welcome lost birds.

335

The reciprocal interdependence of individual and collective Indigenous rights is also

epitomized by the adult Indigenous adoptees’ individual interest to learn the traditions and

cultures of the tribes they were removed from. Theoretically, in liberal individualist terms, if

reunification is successful, the cultural benefits of being part of an Indigenous community,

including the restoration of ties to tribal land and family, contribute to the psychological and

moral wellbeing of an individual adult Indigenous adoptee.

The corporatist (often termed communal) theory regards the community interests as a

point of departure for individual action.

336

In other words, collectives are a fundamental base

from which individuality and individual interests are justifiable.

337

For collectives’ rights to be

realized, they need to be grounded in non-individualistic terms.

338

Indeed, the corporatist

approach’s recognition of the mutuality of interests between individuals and groups to which

they belong has some appeal.

339

The limitation of the corporatist theory seems to be its acknowledgement of individual

interest only if it connects with their primary group membership.

340

Article 9 of the UNDRIP can

be said to have originated from this school of thought, as it makes the right of an individual to

331

Austin Badger, Collective v. Individual Human Rights in Membership Governance for Indigenous Peoples, 26 AM.

U. INT’L L. REV. 485, 494 (2003).

332

Id.

333

Id.

334

Id.

335

Telephone interview with Mr. Dobson, Indigenous Adult Adopted in 1961 (Oct. 20, 2021).

336

See Holder & Corntassel, supra note 319, at 131.

337

Id.

338

Id. at 132.

339

Id. at 132.

340

Id. at 133.

self- identify as Indigenous to be accepted by the Indigenous community they self-identify.

341

Aligning individual interests with membership may be problematic in situations where the

determination membership is influenced by the colonial agenda to exterminate tribes through

controlling membership directly or indirectly.

Tribes have a legitimate collective interest in protecting themselves from invasion by

individuals that may not qualify as Indigenous Americans—hence the un-enrollment and

disenrollment of those whose individual claims to indigeneity do not meet the tribes’ criteria for

membership.

342

The UNDRIP recognizes this collective interest in article 33, stating “Indigenous

Peoples have the right to determine their own identity or membership in accordance with their

customs and traditions.”

343

This section was designed to end the practice in many settler states

where Indigenous membership is still determined by the government instead of Indigenous

peoples themselves.

344

However, three categories of individuals who, despite having genealogical ties to an

Indigenous group, remain unenrolled.

345

First, there are those individuals who have lost their

connection to the Indigenous groups through the process of colonization.

346

Next, there are those

excluded from their Indigenous groups by state legislation.

347

Lastly, there are former members

of an Indigenous group excluded by the rules of the Indigenous community now dis-enrolled.

348

Adult Native adoptees or their descendants fall in the first category, as they lost

connection to their tribes because of a colonial program designed to assimilate them. Most of

these adult Native adoptees remain unenrolled in their tribes as they are either unable to meet

blood quantum requirement or do not have information (records) about their ancestors who were

members of the tribe, for enrollment through patrilineal or matrilineal descendance.

It cannot be ignored that a tribes’ collective interest may be distorted manipulated to

sustain the colonial intentions to exclude and extinguish Native Americans, thus negating

genuine collective tribal goals and individual Indigenous interests.

349

Blood quantum is one such

example of colonial impositions, inconsistent with traditional ways of defining tribal

341

UNDRIP, supra note 246, at art. 9.

342

EMBRACE RACE, Identity Crisis: Tribal Non-enrollment & its Consequences for Children (last visited Dec. 21, 2021),

https://www.embracerace.org/resources/identity-crisis-tribal-nonenrollment-its-consequences-for-children.

343

UNDRIP, supra note 246, at art. 33.

344

Shin Imai & Kathryn Gunn, Indigenous Belonging: A Commentary on Membership and Identity in the United

Nations Declaration on the Rights of Indigenous People, in OX. COMMENT. ON INTER’L L.: COMM. ON UNDRIP

(forthcoming).

345

Id.

346

Id.

347

Id.

348

Id.

349

EMBRACE RACE, supra note 320.

membership.

350

Blood quantum became part of the boiler plate which guided tribes designing

their constitutions, as per the IRA.

351

Given the intricacies surrounding the enrollment of individual adult Native adoptees into

their tribes, a question arises: If an adult Native adoptees’ individual interest to identify as Native

American is not recognized under the tribe’s collective interest as reflected in its enrollment

criteria, does the former cease to be Native American? It may be argued that Congress addressed

this question by passing the Indian Civil Rights Act, whose purpose is to improve tribal

members' standing within the tribe, while prohibiting tribal governments from passing laws that

violate individual rights.

352

Despite the ICRA’s inclination towards the protection of individual tribal member’s

interest, courts have deferred to the tribe’s collective criteria when disputes concerning

membership arise between an individual and the tribe. In the case of Santa Clara Pueblo v.

Martinez, the tribes’ collective interest in controlling membership was discriminatory and

adversely impacted an individual’s interest in becoming a member, and the Supreme Court

deferred to membership rules enforced by the Indigenous group itself.

353

The rationale for the

Supreme Court’s ruling was to uphold Congress’ goal of promoting tribal self-governance and

sovereignty.

354

In a similar ruling at international level, the Human Rights Committee (HRC)

could not rule out a Canadian legislation which restricted an individual Native person’s right to

residence.

355

In interpreting whether an individual claim to belong to an Indigenous group in

terms of the ICCPR is valid, the HRC said: “Persons who are born and brought up on reserves

who have kept ties with their community and wish to maintain these ties must normally be

considered as belonging to that minority within the meaning of the Covenant.”

356

In essence, the position of the HRC did not prevent the denial of right to membership to

individual adult Native adoptees who were forced out of their tribes, grew up outside their

reservations, and never had ties with their tribes.

357

These two cases are classic examples of the

way international and domestic law is ill-equipped to bring harmony between collective

Indigenous rights and individual human rights.

The individual interests of many adult adoptees in becoming members of their tribes and

learning its culture and traditions may be irreconcilable with the tribes' collective interest in

controlling membership. Recognizing the risk of collective self-determination being exercised to

the detriment of individual human rights, other scholars have prescribed the establishment of a

350

Id.

351

Id.

352

The Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1301-1304.

353

436 U.S. 49 (1978).

354

Id.

355

Sandra Lovelace v. Canada, Communication No. R.6/24, U.N. Doc. Supp. No. 40 (A/36/40) at 166 (1981).

356

Id.

357

Id.

state forum within the national judicial system, competent to review tribal membership

decisions.

358

Deferring to the state or national judicial system is a fundamentally regressive move

that invites the fox to superintend the hen house, which could nullify tribal self-determination.

A national court’s competence to adjudicate Indigenous membership is usually pursuant

to a national legislation defining such membership and granting the court with jurisdiction over

membership disputes. The IRA is not the only example of how state- defined Indigenous

membership does not reflect the true intentions and values of Indigenous Peoples.

359

In Canada,

the Indian Act defined Indian membership on a patrilineal basis even though Canadian

Indigenous Nations are predominantly matrilineal.

360

The conceptualization the relationship between individual rights of an Indigenous

adoptee and the collective rights of a tribe in a reciprocally functional way, requires practical and

contextualized thinking which goes beyond the confines of contemporary theoretical or legal

discourse. While the UNDRIP’s primary purpose is the affirmation of Indigenous collective

rights, it also acknowledges the rights of individual Indigenous Peoples in several provisions.

361

It has been argued that these provisions apply to both those individuals who have been accepted

into a community and those with a genealogical connection to an indigenous group but are not

members of any specific community.

362

It should not be ignored that the individual rights of adult Native adoptees and the

corresponding collective rights of their tribes are mutually interactive rather than mutually

exclusive. Successful reunification allows individual adult Native adoptees to reconnect with

their families, tribes, cultures, and lands, while making it possible for the tribe as a collective to

revive its culture which was interrupted through assimilation projects like adoption.

363

Indigenous’ Peoples collective interest in revitalizing their culture is fortified in Article

13 of the UNDRIP, which recognizes Indigenous Peoples’ right to revitalize, use, develop, and

transmit to future generations their histories, languages, traditions, philosophies, writing systems

and literatures.

364

The stolen generation of children who were removed from their tribes are part

of Native American heritage. Therefore, an Indigenous group’s interest in cultural revitalization

cannot be fully accomplished without its acceptance of those with proven genealogical ties to the

tribe who lost connection to their culture through the process of colonialism.

IX. CONCLUSION

358

Badger, supra note 318, at 506.

359

Indian Reorganization Act of 1934, 25 U.S.C. § 461(19).

360

Imai & Gunn, supra note 331, at 10.

361

UNDRIP, supra note 246, at art. 2, 7-8, 14, 17, 24, 33, 35, 40, and 44.

362

See e.g., Imai & Gunn, supra note 331.

363

Holder & Corntassel, supra note 306, at 129.

364

UNDRIP, supra note 246, at art. 13.

The central theme in this paper is that contemporary extraction of personal information

by governments and corporations using technology is comparable to the extraction of person

related information during the colonial era. This juxtaposition illuminates three primary

differences: (1) the extraction of person related records during historic colonialism relied on

violence, law, and coercion as tools for extraction, while contemporary extraction of personal

information uses technology as the primary tool for extracting data; (2) the extraction of person

related records during historic colonialism targeted Indigenous Peoples while the use of

technology has curtailed the physical and geographical barriers to extraction of personal

information hence, it now targets all races; and (3) Indigenous Peoples records were collected

primarily by settler governments to control, exterminate, and assimilate Indigenous Peoples,

whereas, the collection of personal information broadened in scope to include corporations as

players collecting personal data as capital.

Thus, data colonialism’s relation to historic colonialism is not in principle only. The

appropriation of personal data through the instrumentality of technology is a continuation of a

colonial practice, which originally targeted Indigenous Peoples to erase their identities. Adult

Indigenous adoptees, particularly, those adopted before the enactment of the ICWA, are locked

in a grapple with the legacies of colonialism—fighting relentlessly to reclaim their identities that

were obliterated by colonial collection, alteration, and sealing of adoption records. Contemporary

theoretical discourse needs to acknowledge that extraction of personal information not only pre-

dates the digital era, but also these acts of resistance to assimilation by adult Indigenous

adoptees. The reclamation of identity by adult Indigenous adoptees’ complements the tribes’

collective interest in reclaiming heritage and revitalizing their culture.