UNDERSTANDING THE INDIAN CHILD WELFARE ACT (ICWA)

The Indian Child Welfare Act (ICWA) is a federal law that was enacted in 1978, at a time when a disproportionate number of Indian children were being removed from their homes and placed with non-Native adoptive and foster families. Today, ICWA continues to preserve Native American families, tribes and culture by governing foster and adoptive placements of American Indian children.

ICWA sets guidelines and requirements for how adoption agencies and the child welfare system serve tribal children and birth parents. The act gives tribes legal authority and a voice in child welfare cases, lists criteria for adoptive and foster homes, and places a priority on keeping Indian children with their relatives or other Indian families.

Under ICWA, states are required to make “active efforts” to provide services to Indian families to prevent the removal of Indian children from the home and to reunify Indian families who have entered the welfare system. Active efforts also include consultation with the child’s tribe in all case planning decisions and giving the tribe an opportunity to be involved in all decisions affecting the child. In addition, a tribe or parent may petition to transfer jurisdiction of a child welfare case to their own tribal court.

WHEN ICWA APPLIES

In order for ICWA to apply, the child involved in the custody proceedings must meet the law’s definition of an “Indian child.” According to the act, an Indian child is any unmarried minor who is either of the following:

• a registered member of a federally recognized Indian tribe

• eligible to be a member of a federally recognized Indian tribe and the biological child of a member of the tribe

This means that even if a child or birth parent identifies as Native American, he or she must be eligible for tribal membership in order for ICWA to apply. It is up to each individual tribe to determine eligibility and membership requirements. In addition to the federal ICWA requirements, some states have additional statutes protecting children and birth parents of American Indian heritage. For example, in Washington, Native American birth parents must wait an additional 10 days before consenting to adoption, and their revocation period is longer than for non-Native birth parents.

THE ICWA DEBATE

There has been some controversy surrounding ICWA and similar state adoption laws. While these laws were originally designed to provide needed protection for Indian tribes and culture, some argue that American Indian adoption laws are discriminatory. One of the most famous controversial ICWA cases in recent history is that of Adoptive Couple v. Baby Girl, also known as the Baby Veronica case. In that case, Baby Veronica’s biological father, a member of the Cherokee Nation, agreed to relinquish his parental rights to the child’s non-Indian birth mother, who in turn chose to place the child for adoption with non-Indian adoptive parents. The father, Dusten Brown, was notified of the pending adoption following the child’s birth. Brown had not maintained contact or provided support to his daughter’s biological mother after their relationship deteriorated early in her pregnancy. After receiving notice of the adoption proceedings, he sought custody of the child, arguing that he had not consented to the adoption — only to relinquish his parental rights to the biological mother. Following a trial in the South Carolina Supreme Court, Brown was awarded custody of his then two-year-old daughter, who had been living with her prospective adoptive parents. The Court held that ICWA applied to the case because Baby Veronica met the law’s definition of an “Indian child.”

However, the U.S. Supreme Court later overturned the state’s decision and returned Baby Veronica to her adoptive parents. The Court’s ruling was based on the fact that Brown had abandoned the child before birth and established that ICWA does not apply in cases where the parent in question has never had custody of the child.

Aside from ICWA, similar state adoption laws protecting Indian tribes have also been challenged. For example, in 2015, a member of a recognized tribe in Minnesota sued her tribe, the Minnesota Department of Human Services and the Minnesota Attorney General in order to move forward with an adoption plan she had made with the baby’s father. The birth parents had selected a non-Indian couple to raise their baby, but state laws required them to notify their tribe and give preference to an adoptive placement with a Native American family. The couple argued that the law interfered with their right to make their own decisions about what is best for their child. The attorney in their case argued that it is discriminatory and unconstitutional to require Native parents to notify their tribe of their adoption plans and for agencies to place Indian children on the basis of race — criteria that are not required of birth parents of any other race.

Despite the legal complications and controversy sparked by ICWA, advocates argue that Native American tribes have a vested interest in their children and that these laws are necessary to preserve American Indian culture.

PRESERVING NATIVE AMERICAN CULTURE

It is important for all transracial adoptive families to help their children maintain ties to their racial, cultural, and ethnic background. Tradition and heritage are especially valued in American Indian culture. ICWA exists, in part, to help maintain Native American culture and traditions, and non-Native foster and adoptive parents should take extra care to learn about their child’s tribal affiliation and find ways to honor their culture.
Whenever possible, maintain relationships with your child’s tribe and extended family, and ask them to be involved in your child’s life as he or she grows. Provide many opportunities for your child to interact with tribal role models and to learn about his or her culture and traditions.

ICWA AND YOUR ADOPTION

If you are adopting a child of Native American heritage, it is important that you comply with all ICWA requirements and any other state laws governing the adoption of American Indian children. Your adoption professional or adoption attorney can help you understand ICWA as it applies to your case, as well as any other state laws that may impact your adoption.

The following resources provide additional information about ICWA and Native American adoption:

·      Child Welfare Information Gateway

·      National Indian Law Library

·      National Indian Child Welfare Association

·      AdoptUSKids