By David J. Hardy // Attorney
“Are you, or is someone in your family, a member of an Indian tribe?”
At first blush, this question, which should always be asked of birth parents relinquishing their child for adoption, seems odd. No other foreign citizenship, race, culture, or religion receives similar attention.
The question is sensible, however, based on the Indian Child Welfare Act (“ICWA”), legislation passed by the Federal Government in 1978. The ICWA was designed to address the loss of children by Indian tribes, a resource that Congress quite reasonably determined was “vital to [the tribes’] continued existence and integrity.”
In the decades leading up to the ICWA, various programs and child welfare authorities removed children from Indian homes and reservations, seeking to educate them and “save” them from difficulties of tribal life. Although such programs were generally well intentioned, they drove wedges between Indian children and their cultures and presented the possibility that Indian tribes would cease to exist as their rising generation was lost.
The ICWA provides a number of mechanisms to prevent the removal of Indian children from their homes and tribes. For a child residing on a reservation, for example, tribal courts have exclusive jurisdiction, preventing state courts and state child welfare authorities from intruding upon tribal court decisions. Likewise, for any “Indian Child,” their tribe is entitled to intervene in child custody proceedings, including those relating to adoption, termination of parental rights, and foster care. In many cases, the tribe is entitled to notice of such proceedings.
The ICWA establishes certain standards of proof and preferences that favor the preservation of Indian families and tribal ties and connections. Although every case is different, the ICWA commonly gives Indian tribes a voice in adoption proceedings and may allow a tribe to determine whether a placement may occur and with whom a placement may be made, regardless of the will of biological parents.
It is, therefore, critical in all adoption cases to determine whether the child is an Indian Child. If so, the ICWA must be followed. An Indian Child is defined as a child who is either (1) a member of an Indian Tribe, or (2) eligible for membership in an Indian Tribe and the biological child of a member of an Indian Tribe. Although this definition is fairly straightforward, it becomes complicated by the fact that membership is a matter for each tribe to determine and their standards and policies vary widely. For some tribes, membership is easily determined by reviewing tribal rolls. For others, however, membership is conferred based on ancestry, without any need of a formal relationship with the tribe.
For this reason, inquiries regarding a birth parent’s Indian ancestry must occur early in the adoption process. Birth parents must be asked whether they or their family members (including ancestors) are members of any Indian tribe. If so, further inquiry is required to determine whether the child is an Indian Child. This may include contacting tribes to inquire concerning tribal membership. In all adoption cases, a determination must be made as to whether the child is an Indian Child.
If a child is an Indian Child, adoption proceedings must comply with the ICWA. These vary from case to case but generally include a requirement that birth parents relinquish the child before a judge and that the relinquishment not take place until the child is at least ten days old. In some cases, notice to the tribe will be required. In any case, the tribe will be permitted to intervene and be a part of adoption proceedings.
Ignoring the ICWA carries considerable risk. A tribe may intervene in adoption proceedings on its own behalf or on behalf of a tribal member in order to compel the placement of a child with a family member, a tribal member, or another Indian family. Even after an adoption has been finalized, a tribe may be able to have an adoption decree set aside based upon failure to satisfy the ICWA. For these reasons, it is critical to address the ICWA whenever adoption of an Indian Child is anticipated.
Of late, the ICWA seems to be especially controversial. In 2013, the United States Supreme Court addressed the ICWA in a case commonly referred to as “Baby Veronica” (Adoptive Couple v. Baby Girl). It involved a child placed with a non-Indian couple by her biological mother. The biological father was a member of the Cherokee Nation, and he desired to raise his daughter, although he failed to establish his rights pursuant to state law. He and the Cherokee Nation argued that the ICWA allowed him to assert his rights anyway. The Supreme Court rejected his arguments, but the case has lead to the Bureau of Indian Affairs proposing new regulations, which, if adopted, will strengthen the position of Indian tribes in ICWA cases.
As these regulations are under consideration, several lawsuits challenging ICWA have been filed. These contend that the ICWA is unconstitutional in some cases because of a parent’s fundamental right to make decisions for his or her child.
Although lawsuits and regulations have the potential to complicate adoption, they need to present an insurmountable barrier. The key for all involved in adoption proceedings is to be aware of the ICWA and take suitable steps to address it.