5 Tips You Should Know About Adoption Under the Indian Child Welfare Act (ICWA)

Tip #1 - What is the Indian Child Welfare Act (ICWA)?

The Indian Child Welfare Act (ICWA) is an important law that needs to be considered and evaluated in every domestic adoption. The ICWA was passed by the United States Congress more than 30 years ago ​to correct an unfair and disproportionate pattern of removal of Indian children from their homes by child protective services among the States.  Congress passed ICWA to protect Indian children from such removal from their homes and their disproportionate placement with non-Indian families.

Tip #2 - When does ICWA apply to an adoption?

Congress intended for ICWA to apply only in involuntary custody proceedings when an Indian child is taken into child protective services custody. ICWA is not intended to apply to voluntary adoption proceedings where Indian birth parents voluntarily and willingly decide to place their child for adoption and select the family who will be the child’s adopting parents. However, based upon court decisions throughout the nation, this difference has become somewhat "murky."

Therefore, in every adoption, it is important to determine if the birth mother has American Indian or Native American ancestry. If the birth father is known, he should also be asked this question. If either birth parent indicates that he or she may have Indian ancestry, ICWA requires further inquiry about such ancestry. In fact, the duty of notice under ICWA is triggered if someone “knows or has reason to know that the child is an Indian.” The birth parent should speak with family members and relatives to get as much information about their family history as possible in order to give notice to the proper tribe. If the birth parent does not know the names of ancestors whom he or she thinks may be members of a tribe and/or the birth parent does not know the specific tribe, notice still must be given to the Bureau of Indian Affairs.

Tip #3 - What type of notice must be provided under ICWA?

If a birth parent believes that he or she has Indian ancestry, notice must be sent to the tribe, or if the tribe is unknown, to the Bureau of Indian Affairs. A copy of the notice must also be sent to the birth parents.

The notice must contain specific information:

(1) notification that the tribe and biological Indian parents have an absolute right to intervene at any point in the adoption proceeding;

(2) that counsel will be appointed to represent the Indian parents or Indian custodian where authorized by state law, and

(3) that the tribe and biological Indian parent have the right to petition the court to transfer the adoption to the child’s tribal court, absent objection by either parent.

If proper notice has been sent and neither the tribe nor the BIA provide a response regarding the child’s eligibility for membership within 60 days of receipt of the notice, the adopting parents may file a motion requesting the court determine that ICWA no longer applies. If the court grants the motion, then notices are not required unless either the tribe or BIA subsequently confirm the child is an "Indian child" and ICWA applies. In that case, the court must reverse its determination and apply ICWA.

Tip #4 - If the tribe chooses to intervene in the adoption, what can it do?

If the tribe confirms that the child is eligible for membership, the tribe may choose to intervene in the adoption proceeding. The tribe is entitled to notice of all hearings and has the right to participate in the adoption proceeding and take various actions. It is important to remember that the tribe’s rights are separate from the rights of the birth parents. One right that the tribe has is that it can petition the court to transfer the adoption to a tribal forum. In a tribal forum, tribal law applies and the tribes are not subject to federal ICWA standards like a state court. However, the transfer of jurisdiction to a tribal forum may be defeated if one of the birth parents objects to the transfer.

The tribe also may exercise its right to determine the placement of the child according to a specific preference order. In an adoptive placement, the preference order for an Indian child is: (1) with a member of the child’s extended family; (2) with other members of the child’s tribe; and (3) with other Indian families. The Indian child may be placed in a non-Indian home only if the court finds that a diligent search has failed to locate a suitable Indian home.

This preference order may be modified only for good cause, which includes: (1) the request of the parent or Indian custodian; (2) the request of the Indian child; (3) the extraordinary physical or emotional needs of the Indian child established by a qualified expert witness; and (4) the unavailability of suitable families based on a diligent effort to identify families meeting the preference criteria. The burden of proving that good cause exists is on the party seeking to modify the preference order.

Tip #5 - Under ICWA, can a birth parent withdraw consent to the adoption?

If a birth parent signs a standard consent form and then it is determined that the child is eligible for membership in an Indian tribe, the birth parent’s consent becomes void. ICWA requires a birth parent to sign ICWA-compliant placement papers before a judge no earlier than 10 days from the birth of the child.

A birth parent who signs a consent form before a judge pursuant to ICWA may withdraw his or her consent any time before the court enters the final adoption order at the finalization hearing. Within two years of entry of the final Adoption Order, a birth parent may only withdraw his or her consent upon a showing that the consent was obtained by fraud or duress. A birth parent cannot withdraw his or her consent two or more years after the final Adoption Order is entered.

Brooke Swier Schloss
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Family Law and Estate Planning attorney helping families across South Dakota plan and protect their loved ones