If babies have the market cornered when it comes to cuteness, 6-month-old Jacob Wesley Cato is the CEO of cute. He bounces up and down in the baby-walker equivalent of a tricked-out sports car, giggling and poking the myriad attachments that whiz, spin and twirl. The primary-colored paint job makes it an even cooler ride. But Jacob's real charm isn't in his sweet set of wheels; it's in his smile. Perpetually grinning, he babbles as his mom, Tracy, sprawls him out on a blanket on their living room floor. Behind them, red-checkered curtains frame the scene as Jacob's dad, Kelley, a firefighter, looks on. It's a picturesque suburban American family moment, but there may not be many more like it for the Catos and their adopted son. A federal adoption law says their arrangement is illegal. The problem is that Tracy and Kelley are white, and Jacob is not.
Jacob was born in early January in Oklahoma to a 20-year-old Cherokee woman who found the Catos through a women's shelter. They were the ones who took Jacob home from the hospital to their house in Corinth. Now, because of a federal law that dictates all orphaned or unwanted American Indian children be placed in Indian-sponsored foster homes, institutions or adoptive families, they may be forced to give him up. The Indian Child Welfare Act is meant to preserve American Indian cultural heritage, which may mean taking Jacob out of the only home he's ever known. Temporary custody has been granted to the Catos, but despite missing adoption hearings for Jacob's case, the Cherokee Nation has filed a motion to obtain custody, which will likely be ruled in their favor. On June 28, the Catos will travel to Oklahoma for the final hearing, where they will find out if they will be able to keep the baby they've come to love as their own.
"We pretty much are powerless here," says Kelley Cato, sitting by a stack of court documents strewn across the table in the Catos' sunny kitchen. "We didn't realize how strong ICWA is." It's meant to be, and the Cherokee Nation says it has to be, for the sake of their tribe's preservation.
Signed into law in 1978, the Act notes the "alarmingly high percentage" of children who were being removed at the time from Indian homes by non-tribal agencies. Placing Indian kids in non-Indian homes "often failed to recognize the essential tribal relations of Indian people." At stake, says a lawyer with the Cherokee Nation, is the life or death of an entire tribal culture.
"It makes a difference between us being here in 100 years and us not being here in 100 years," says attorney Sara Hill. She says raising an Indian child in an Indian family, preferably with relatives of the birth mother or father, instills culture and values in the child that can't be taught through history lessons with non-Indian parents. Without that tribal family environment, she says, the culture will die out.
"The Cherokee family is creating the future of the Cherokee Nation," she says. "Just reading in a book about the history of the nation isn't the same as being present in its future." The only way to make sure tribal culture survives, Hill says, is to ensure Indian children are raised in Indian households. If a household isn't immediately available, the Nation prefers to place children in Indian foster homes or Indian-sponsored "institutions" for orphaned children rather than with non-Indian permanent adoptive families. Legally, Indian lawyers have a year to file for custody once adoption proceedings begin.
The Cherokee Nation has failed to attend adoption hearings, says Kelley Cato. On January 25, when Jacob's birth mother officially signed over custody to the Catos, "the Indians didn't even show up." They officially filed a motion for custody in April after missing another hearing in February. Cato says there's no need for the child to be placed with an Indian family. He believes he's already in one.
Kelley says he'll teach Jacob about Cherokee history; he insists he'll take him to tribal functions and learn the Cherokee language, and not just for Jacob's sake. When he found out about ICWA, Cato says he looked into his own family history and found Indian blood.
"We'll teach him to be proud," says Cato, who is trying to prove he has Cherokee heritage, though his ancestors never signed the tribal rolls. Included in his chunk of court documents is the genealogy research he's conducted. Letters from great-grandparents, black-and-white photographs and even marriage records, but nothing concrete, just the good word of his forebears. Unfortunately, says Cato, if you could pass for being white back in the day, many would, to escape racial discrimination. Without a tribal membership number, however, Kelley Cato is just another white guy. Now, Cato says, he's the one being punished.
"It's discrimination at its finest," says Cato. If a black family adopted a white child, for example, Cato says, no one would be able to protest. When he found out that he, too, had Cherokee ancestors, Cato "took that as a sign" that Jacob was meant to be his son. But for the Cherokee Nation, that probably won't be good enough. The Catos' lawyer, David Youngblood, says they have a 50/50 chance of keeping Jacob.
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"Proving to the contrary of a congressional mandate puts a huge burden on us," says Youngblood, who plans to argue that, ICWA aside, the Catos are better for Jacob than a foster family. If he's taken away, says Youngblood, he'll have future psychological issues with attachment. Tracy Cato has been Jacob's caretaker practically since day one. "All of a sudden the person taking care of him and loving him just--poof!--disappears. It could cause serious damage to the child."
Because adoption proceedings are officially confidential in Oklahoma, the Cherokee Nation couldn't say whether they had a family ready to take Jacob, only that they had "a large number of placement resources." The Catos say that Jacob's birth mother told them she didn't want the baby to be raised in an Indian home. She also refused to disclose the identity of the baby's father, saying only that he was a full-blooded Choctaw. Choctaw officials relinquished any right to the child because there was no proof of parentage, though by law the Catos had to run an ad in Oklahoma newspapers seeking the baby's father. No one responded.
The case will be heard in a U.S. court, not a tribal court, which helps the Catos' chances. If Jacob's adoption does not go through, says Tracy Cato, they won't try for another. They already have an adopted 6-year-old daughter, Madison, who named Jacob. Looking at his son's big, brown eyes and full head of stick-straight black hair, Kelley shrugs, exasperated. He reiterates his promise to raise Jacob as a Cherokee.
"They wouldn't lose a child," he says. "They'd be gaining a whole family."