Indian Child Welfare Act of 1978
An interesting question can across my email the other day inquiring about the rights of a child who is part American Indian and whether or not the birth mother had the legal right to proceed with a private adoption. Not being an expert on the subject I did some research which I share with you here. The first step seems to be to find out if the particular tribe hailing from the state of the child's ascestorial orgin is indeed a federally recognized tribe under the Act and if indeed it is some contact must be made with the tribe to determine their eligibility requirements. If the child appears to be eligible for membership in a tribe which is indeed federally recognized, the proper proceedure must be followed in order to proceed with the adoption. According to the act it seems to be merely a notice provision of the birth mother's decision to release the child for adoption. New York does not
What is the Indian Child Welfare Act?
The Indian Child Welfare Act (ICWA) is a federal law which regulates placement proceedings involving Indian children. If your child is a member of a tribe or eligible for membership in a tribe, your family has the right to protection under the ICWA. These rights apply to any child protective case, adoption, guardianships, termination of parental rights action, runaway/truancy matter, or voluntary placement of your children.
When was this law passed?
The ICWA was created in 1978 by the federal government in order to re-establish tribal authority over the adoption of Native American children. The goal of the act when it passed in 1978 was to strengthen and preserve Native American families and culture.
Why was this law passed?
Before the ICWA was passed, a very high percentage of Indian families were broken up because non-tribal agencies removed children from their homes. One reason for the high removal rate was because state officials did not understand or accept Indian culture. Today, the ICWA sets minimum standards for the removal of Indian children from their homes.
Who does it apply to?
The law applies to Native American children who are unmarried and under age eighteen. The child must be either a member of a federally recognized Indian tribe or must be eligible for membership in a federally recognized Indian tribe.
What does the law do?
The ICWA requires that placement cases involving Indian children be heard in tribal courts if possible, and permits a child's tribe to be involved in state court proceedings. It requires testimony from expert witnesses who are familiar with Indian culture before a child can be removed from his/her home. If a child is removed, either for foster care or adoption, the law requires that Indian children be placed with extended family members, other tribal members, or other Indian families.
What if a child is not living on the reservation does the ICWA still apply?
Yes. The ICWA has a notice requirement. This means that if a state takes a child into custody, it must give notice to the child's tribe, wherever the child may be in the U.S.
Does the act apply to a couple getting a divorce?
No.
What if a parent allowed someone else to become a guardian of their child and later changes their mind?
The ICWA provides that an Indian parent always has the right to revoke a guardianship.
Who decides if a child is a member of the tribe?
The law does not apply a specific blood quantum as the criteria for membership. It leaves it up to each Native American tribe to make such determinations on their own. The determination by a tribe that a child is or is not a member of that tribe, is or
is not eligible for membership in that tribe, or that the biological parent is or is not a member of that tribe is necessary for a court to allow the adoption of an indian child without consent of the tribe.
The Indian Child Welfare Act applies to “child custody proceedings” involving
“Indian children.” Child custody proceedings include both pre-adoptive and
adoptive placements. The ICWA applies equally to private and public adoptions.
ICWA also applies to stepparent adoptions. One of the more difficult issues that arises for attorneys is determining whether an Indian child is an Indian under the ICWA. The ICWA defines an Indian child as a member of a federally-recognized Indian tribe or a child who is eligible for membership in a federally-recognized Tribe and the biological child of a member. Attorneys have an affirmative obligation to notify a Court if a proceeding involves a child that may be Indian. The failure to notify the Court of the potential status of the child as Indian may result in vitiating an
adoption and potential criminal liability should a pending act of Congress be
enacted. Some state courts have adopted a judicially-created exception to the
Indian Child Welfare Act, frequently referred to as the “existing Indian family
exception” that holds that the ICWA does not apply to a child custody proceeding
unless the child has lived in an intact Indian family. A majority of state courts to
rule on this have rejected this exception as contrary to the language of the ICWA.
