Whites Adopt Navajo : Sovereignty on Trial in Custody Case

Through the curtained front windows, Dan, Pat and Michael Carter seem one of those families you see in TV commercials around Christmas. Pat is practicing church hymns at the piano. Dan and Michael are watching football downstairs in the den.

When they sit on the sofa together chatting with a guest, the Carters have a habit of touching and holding hands.

Except that Michael is a different color, there is no evidence of anything extraordinary. Save for a cardboard box full of legal papers that Pat keeps in a cupboard next to the kitchen, nothing suggests that Michael Carter’s adoption has become an important test of American Indian tribes’ right to exert sovereignty over their members.

Cite Federal Law

Six years ago, Dan and Pat Carter adopted Michael, a full-blooded Navajo, in Utah with his mother’s consent. Two years later, the Navajo Indian nation challenged the adoption, alleging that under the Indian Child Welfare Act--which Congress passed in 1978--only the Navajo tribal court, not a state court, could decide the custody of a tribal child. In December, the Utah Supreme Court found in favor of the tribe, and Michael may well be taken from the Carters and returned to the reservation, perhaps to his natural family, perhaps not.

As the Carters see it, some misguided technicality may force them to return their child, now 9 years old, to a mother he cannot remember, an Indian culture he does not know, a language he cannot speak, an environment they distrust.

As the Navajo see it, winning the legal right to decide Michael’s fate could help stop the tragic exodus of Indian children from their families, a phenomenon that today may prove the most dangerous threat to what remains of American Indian culture. And while the tribe concedes Michael will suffer tragically if the Navajo court decides to return him to the reservation, it contends he already feels intense racial confusion and could ultimately suffer worse if he remains in a white culture.

Clash of Values

For both sides, it is a clash between the value whites traditionally attach to the nuclear family--intensified in this case by the Carters’ Mormon faith--and the value Navajos attach to the extended family and the Indian identity created by reservation life.

If it were up to Michael--whose Indian name is Jeremiah Holloway--he would stay with the only parents he knows, the Carters: “I do not want to go back to the Navajo Reservation,” he wrote the governor of Utah in December. “I do not know anybody on the reservation. I don’t even know the language that they use. Please help me! From Michael Carter!”

Nonetheless, “I expect that the tribal court will ask that Jeremiah be returned,” said tribal attorney Craig Dorsay.

Michael’s is not the only adoption that could be affected. The parents of any Indian child adopted under state law since 1978 may have legal problems if the tribe was not formally involved. Richard Johnson, the Carters’ attorney, says he knows of dozens of families in similar situations.

Like the Carters, they may have run afoul of a new law they had never heard of, and years of white abuse of Indian families they knew nothing about.

“The wholesale separation of Indian children from their families is perhaps the most tragic and destructive aspect of American Indian life today,” Congress wrote in 1978.

“Approximately 25% to 35% of all Indian children are separated from their families,” studies showed at the time, by foster homes, adoption or Bureau of Indian Affairs boarding schools. In most adoptions or foster cases--1969 surveys indicated more than 85%--the children were sent to non-Indian homes.

The reasons were many. But key among them was that among traditional Indians, child rearing is based on an extended, not a nuclear family, and often involves passing children among relatives--practices that often alarmed white officials.

Social Workers’ Attitudes

“Many social workers,” Congress found, either untutored in or disapproving of these Indian ways, “consider leaving the child with persons outside the nuclear family as neglect and thus as grounds for terminating parental rights.”

And “It is rare for either Indian children or their parents to be represented by counsel or to have the supporting testimony of expert witnesses.”

After years of hearings, Congress passed the Indian Child Welfare Act in 1978 to “protect the best interest of Indian children and to promote the stability and security of Indian Tribes and families . . . “

To do so, the act gave tribes rights along with parents over Indian children, a notion that runs counter to the Anglo Saxon tradition of the primacy of parental custody. The act also gave federally chartered Indian tribal courts some jurisdiction over child custody cases, counter to the American legal tradition that child custody is decided according to state law.

It was less than two years later that the Carters heard from a friend about a Navajo boy who might be available for adoption.

Dan and Pat had tried for five years to have children of their own and failed. They even explored having a test-tube baby, though it would have proven costly on Dan’s earnings as a plumber. Finally they decided to adopt.

Friend Alerts Couple

In February, 1980, a family friend, Kirsten Hart, told the Carters that a woman named Polly Ann Dick, a Navajo Indian who had grown up in Kirsten’s home, wanted to take her nephew off the reservation for adoption. Polly, who lived in Utah, had asked Kirsten if she knew anyone who might be candidates as adoptive parents.

The boy, Jeremiah, was born to Polly’s unwed sister, Cecilia, in Church Rock, N.M., and lived initially with Cecilia at his grandparents’. When Jeremiah was 6 months old, however, Cecilia moved out to live with and eventually marry another man, Arthur Saunders. And when Arthur made it clear he didn’t like the boy, Jeremiah stayed with his grandparents, Bessie and Jack Begay, where he remained for the next two years.

From Utah, Polly had become worried about Jeremiah, about his separation from his mother, about the conduct of the grandparents, about the quality of life on the reservation. She met with the Carters, and a month later, in March, 1980, brought her nearly 3-year-old nephew up from Church Rock. A little more than a month later Polly also brought Cecilia to sign the adoption papers in a Utah court.

To the Carters, Michael’s natural family seemed unfit. Cecilia, after all, had left the boy with his grandparents because her new husband didn’t want him.

Once there, “the child was reported to be constantly on the go with both grandparents on their sheep herding job,” Johnson, the Carters’ attorney argued before the Utah Supreme Court. “There were 15 (family) members living in the same household.” And “Michael (Jeremiah) had been passed to different people since the time he had been born.”

Extended Family

But to the tribe, such facts have no bearing on a family’s fitness. Such criticisms are the result of cultural ignorance. In the Navajo concept of extended family, the child “identifies with his maternal aunts or in a lot of cases paternal aunts as being mothers,” and passing children among them is common,” the tribe argued at trial.

The Navajo word for aunt translates as “little mother.” The Navajo language has no word for adoption.

Attorney Johnson, however, argues that by any standard Jeremiah’s family was troubled.

His grandmother, the tribe concedes, is an alcoholic. And the grandfather drank.

On one occasion, testimony shows, authorities picked up Bessie Begay drunk outside a bar in Gallup, with 2-year-old Jeremiah left alone in a nearby pickup.

One tribal social worker, even “indicated that all of the family relatives of Jeremiah were unstable,” attorney Johnson argued.

How do you call such things, Johnson wonders, merely cultural differences?

Situation Improves

You can, the tribe contends. Tribal social services never found Cecilia’s family unfit, Dorsay, the Navajos’ lawyer, counters. In any case, the situation has improved; Cecilia is now successfully raising other children; Arthur, who used to verbally mistreat Jeremiah, “went through some native American church and traditional Navajo healing ceremonies” and now wants Jeremiah back.

None of this impresses the Carters or their attorney, all of whom are Mormons.

To members of the Church of Jesus Christ of Latter-day Saints, Dan explained, “the nuclear family is the most important thing, even before religion. . . . If a child is passed around from house to house and from aunts, to uncles to cousins, that just confuses him.”

To be honest, Pat said: “I don’t think it’s good for any of them to live on the reservation. You’ve got drug abuse, alcoholism, teen-age suicide down there.”

This tension between Mormon and Navajo culture shrouds the case of Michael Carter like smoke over a long-smoldering fire, going much of the way to explain why timely compromise became impossible.

“The Indian culture is foreign to me and I don’t think it is valid, but that is only a personal opinion,” said Carter attorney Johnson. Frankly, Johnson would like to find a case in which he could challenge the Indian Child Welfare Act.

Criticizes Mormons

“I just think they (Mormons) are insidious, I mean personally,” said tribal lawyer Dorsay on the other side. “They have caused more problems for Indians than any other group I can think of.”

Much of the contention surrounds the Mormon theology toward American Indians. According to church teaching, most Indians, including Navajo, are descendants of the lost tribes of Israel that, formed the Latter-day Saints church. The church even calls Indians “Lamanites,” because they are descendants of Laman.

In the Book of Mormon, Laman and Lemual were brothers of Nephi, a righteous man of fair coloring and a main figure in the evolution of the church. Laman and Lemual rebelled against Nephi and tried to kill him.

In response, according to the First Book of Nephi, God cursed the Lamanites and “they became a dark and loathsome, and a filthy people, full of idleness and all manner of abominations.”

The Second Book of Nephi explains that if Lamanites become Mormons, however, “their scales of darkness shall begin to fall from their eyes; and many generations shall not pass away among them save they shall be a pure and delightsome people.”

Before 1980, when the passage was changed, the wording said “white and delightsome.”

Spiritual Brothers

To Mormons, therefore, the church and the Navajo are spiritual brothers, and encouraging conversions among Indians is a mission of special purpose.

On the reservation, however, the church inspires divided feelings: Some see it as power helping thousands better adapt to modern life; others see the church as an insidious, perhaps racially prejudiced, power trying to destroy Indian culture.

Such differences are at the heart of the case of Michael/Jeremiah.

For instance, Aunt Polly is a Mormon, educated in Utah under the Mormon Church’s Indian Student Placement Service, a program in which Indian children are raised during the school year by Mormon foster parents in Utah, returning to their real families and the reservation for summers. The children must convert to the Mormon faith, and their Mormon foster families pay for their living expenses during the school year.

Polly declined to be interviewed for this story, and most of the trial transcripts are under seal because the case involved a juvenile. Nonetheless, testimony obtained by The Times suggests Polly’s Mormon training played a hand in Michael’s fate.

Didn’t Contact Tribe

Polly deliberately avoided contacting the tribe with her concerns about Jeremiah’s upbringing because she harbored her own doubts about Navajo child rearing practices.

The tribe “would probably have put him in a different kind of home that I didn’t like,” Polly testified.

“Can you elaborate on what you mean by a different home that you didn’t like?” the tribe’s attorney asked.

“Well, it is my feeling that the tribe doesn’t care less where they put their kids. But I care about my nephew so I want him in a good home.”

These questions, of culture and race, will likely prove the key issues in tribal court. In a sense they are the same questions Americans have wrestled with since the American Revolution. Can an Indian thrive in a white home and a white world? Or must he remain among his own people.

The Carters argue it is inconceivable Michael might be taken from them after six years, given to a family it considers possibly unfit, or some altogether new family on the reservation.

“That would be the most cruel thing you could do,” Johnson said, “to say to a young child, here are your mother and father who you love and they’re in Spanish Fork, Utah, and you’re going to Arizona. . . . Frankly, it would be easier for him if the Carters were dead.”

The tribe’s attorneys, however, contend that while separation from the Carters may prove painful now, Michael may face an even more anguishing fate if he remains with them. Although research in this area is incomplete, it argues, much evidence suggests that Indian children raised in white culture often have trouble adjusting when they reach adolescence.

In Michael’s case, the psychologist who testified for the tribe contended that Michael already is suffering “extreme confusion about his own racial identity . . . “ Samuel Roll, a psychologist at the University of Mexico familiar with Indian behavior, examined Michael, then age 7, for trial in Utah state court. While Michael is “very closely and warmly bonded with the Carters,” Roll wrote in his report, “He sees Indians as bad, ugly and frightened . . . his Indian mother, in particular.”

Michael believes “he is an Indian now,” Roll said “but when he grows up he (thinks he) will be a white man, which he explains is better because they are stronger.”

As a result of such confusion, Roll decided, when Michael becomes an adolescent “he will hate himself . . . “ In the long run, Roll recommended, “the least pain to Jeremiah will result by returning him to his Navajo family.”

The psychologist testifying for the Carters, Robert J. Howell came to different conclusions. “Michael is well adjusted,” Howell’s report found, and he “sees Mr. and Mrs. Carter as his parents.”

Appreciation of Heritage

He agreed, though, that “effort should be made to inculcate in Michael an appreciation for his heritage,” including contacting his natural family.

But the Carters’ psychologist wrote, “The probability of emotional damage taking place which would result from removing Michael from the Carter home far outweighs the potential conflict as to Michael not having a clear identity of himself as an Indian, and yet, also knowing that he is not Caucasian.”

To Dan Carter, the issue distills down to basics, things he knows in his heart, things psychologists and lawyers don’t have anything to do with. “As long as he knows I love him and knows he can talk to me, I don’t think there is anything we can’t work out.”

To the tribe, the Carters seem ill-prepared to teach Michael about his culture.

What seems hardest to understand, at least for Michael, is time. Why did it take six years to get to this point? “I was shocked,” Michael said. After all this time, the Carters were his parents. He couldn’t imagine leaving.

Precisely why so much time passed, like everything else in the case, is shrouded in dispute.

Legal Mistakes Made

One factor was legal mistakes on both sides. The Carters’ initial attorney, for instance, knew nothing of the Indian Child Welfare Act, failed to notify the tribe of the adoption proceeding in advance as required by law, and then, when instructed to notify the tribe afterward by the judge who signed the adoption papers, waited another five months to do so.

Then the tribe erred. Once notified, it did nothing for 17 months, until February, 1982, when it arranged with the Carters’ attorney for Michael’s return and sent a social worker to Utah to pick him up.

By 1982, however, Michael was nearly 5 years old, two years a member of the Carter family. Dan and Pat had a new lawyer. They told the social worker at their door they would fight in court.

The tribe blames the 17-month delay on administrative confusion related to the transfer of tribal social welfare services from the Bureau of Indian Affairs to the Navajo Nation.

Johnson, the Carters’ new attorney, contends the delay was not so innocent. The tribe needed 17 months, he argues, to browbeat Cecilia into changing her mind about the adoption so it would have a test case.

To support his argument, Johnson notes that Cecilia kept changing her mind on the stand over whether she wanted Michael back. Tribal authorities said such waffling is natural for a mother worried her case will pain her child.

Unavailable for Questioning

They refused, however, to make Cecilia available for this story, saying they were waiting for her to get independent legal counsel.

From the time, in May, 1982, that Cecilia withdrew her adoption consent and the tribe sought transfer of jurisdiction, the case then took another 2 1/2 years to wend its way through Utah state court. When it finally ruled, formally approving the adoption for the first time, Michael was 7 1/2 years old.

The state court found Cecilia had abandoned Michael under Utah law, it questioned her fitness, and it said too much time had now passed for Michael to be removed from the Carters. The tribe appealed, and another two years passed before the Utah Supreme Court found the adoption was never the province of Utah state courts in the first place.

Despite what it might want to do for Michael, the Supreme Court said, giving the Carters legal custody under Utah law would set a precedent that might “reward those who obtain custody, whether lawfully or otherwise, and maintain it during any ensuing (and protracted) litigation.”

What’s more, “federal law prohibits the Utah courts from exercising jurisdiction.”

The Supreme Court did not rule on the fitness of Michael’s Indian family, or whether he would ultimately be better off back among Indians or remaining with the only parents he knows, the Carters. Those questions, it said, are for the Navajo tribal court to decide.

Can Appeal Decision

The Carters can appeal the Utah court decision to the U.S. Supreme Court, but, said Johnson, their finances are limited.

For now, they have agreed to have a tribe-appointed psychologist come visit their home. And they are mulling over all their options.

One idea, if things don’t work out, is moving down to New Mexico, Dan said. That way they could be near Michael if he had to live on the reservation.

In the few such cases he’s had, Dorsay has worked out some shared custody plans. But until now, Dan and Pat frankly have felt uncomfortable about having Michael do any more than visit the reservation, and in any case the litigation kept both sides from having any contact outside court.

For his part, sometimes Michael “gets pretty sad,” Dan said. When asked about it by the recent parade of reporters, Michael doesn’t have much to say. He tends to shrug his shoulders and look at Pat.

One day, recently, he didn’t feel like going to school. “I told him, ‘you go today and think about why you’re sad and when you come home we’ll talk about it,’ ” Dan said. “But when he came home he was playing with his friends again.”