The potential applicability of the Indian Child Welfare Act (ICWA) must be evaluated in every domestic adoption. It is important for birth parents, prospective adoptive parents, and adoption attorneys to understand ICWA and its implications in the adoption process to ensure a smooth adoption.
In the following overview, the terms “Native American” and “Indian” will be used interchangeably.
What is the Indian Child Welfare Act (ICWA)?
ICWA is a federal law that was passed by Congress in 1978. The purpose of the law was to protect Native American children’s connection to their Native American heritage and culture. The law aimed to address the policies and practices of the child welfare system that led Native American children from being separated from their parents.
According to the U.S. Department of Indian Affairs, this 43 years old law is still relevant and necessary to protect and preserve Native American families and culture. Based on recent data, Native American children are disproportionately more likely to be removed from their home than other non-Tribal children. Additionally, since the law’s passage, different interpretations of ICWA have emerged from various States, which highlights the relevant need for uniformity under this law.
Who is subject to ICWA?
ICWA establishes strict eligibility for the law to apply. Under ICWA, all State child-custody proceedings involving an “Indian child” fall under its jurisdiction. An Indian child is tied to the child’s affiliation with a Tribe. The law defines an Indian child as an unmarried minor who is: (1) a member of a federally recognized Tribe or (2) eligible for membership in a federally recognized Tribe and whose biological parent(s) is a member of a federally recognized Tribe.
A few things to note about eligibility. Only one biological parent needs to be a member of a Tribe for the above second prong (#2) to apply. Also, the existence of Native American heritage in a birth parent’s background is not sufficient for ICWA to govern. The birth parent must be a member of the Tribe. Membership differs among Tribes, so whether a birth parent is a member will depend on the facts of the particular situation.
It is crucial to determine at the outset of the adoption process whether the child or birth parent(s) are members of a Tribe. Not only does ICWA require effort be exerted at the beginning of child welfare proceedings, but it is best that the inquiry occurs as soon as possible so that the adoption process can proceed smoothly.
What happens when ICWA applies? How does it affect adoption?
Under ICWA, an Indian child’s parent or custodian and the Tribe must be notified of the custody proceedings. Either birth parent, custodian, or Tribe has the right to intervene at any point in an adoption process that involves out-of-home placement or termination of parental rights of an Indian child. ICWA may apply in foster care adoptions as well as private adoptions.
If the child is found to be an Indian child, subject to ICWA, then the child’s adoptive placement will be prioritized in the following order: with a member of the child’s extended family, with other members of the Indian child’s Tribe, or with other Indian families.
Additionally, Indian parents or custodians of the Indian child may revoke voluntary consents to placements and adoptions any time before a decree of termination or adoption. If consent is withdrawn, the Indian child shall be immediately returned to the parent or Indian custodian.
Questions about ICWA
While this article provides a general overview of ICWA, it is important to know how this law may affect your particular adoption journey. To ensure your questions and concerns are fully answered, please contact Christina E. Campbell of The Campbell Law Practice, LLC to discuss your adoption needs.
Understanding the Indian Child Welfare Act