In general, adoption laws are state laws, different from one state to another. If you adopt a child in Arkansas, you need an Arkansas adoption lawyer, because a lawyer in another state will not be export in the specific adoption laws of Arkansas. However, there are some federal adoption laws. One that is particularly important if you are planning to adopt a Native American child is the Indian Child Welfare Act.
The Indian Child Welfare Act (ICWA) is a landmark federal law enacted in 1978 to protect the best interests of Native American children and to promote the stability and security of Native American tribes and families. This critical piece of legislation was a direct response to a long history of practices that systematically removed Native American children from their homes and communities, often placing them in non-Native foster or adoptive homes, boarding schools, or institutions. Such removals, frequently without due process or adequate justification, severely damaged tribal cultures, family structures, and individual identities.
Historical Context and Purpose
According to University of Chicago researchers, 25-35% of Native American children were separated from their families in the 1960s and 1970s. About 85% of these children were placed in homes unconnected with their tribes or indigenous heritage. These removals were often driven by cultural misunderstandings, biased assessments of parenting, and a belief that assimilation into mainstream American society was in the children’s best interest. Higher levels of poverty and mental illness among Native Americans contributed to the problem, suggesting a need for additional support for Native American families.
Concerned about cultural loss, psychological trauma, and the erosion of tribal sovereignty, Congress passed ICWA in 1978. The law has several key purposes:
- To protect the best interests of Native American children.
- To promote the stability and security of Native American tribes and families.
- To prevent the unwarranted removal of Native American children from their homes.
- To maintain the cultural identity and connection of Native American children to their tribal heritage.
Key provisions of ICWA
ICWA established federal standards for the removal and placement of Native American children in state child custody proceedings. It applies to children who are either members of a federally recognized Indian tribe or are eligible for membership and are the biological child of a tribal member. The law’s core provisions aim to ensure that tribal interests are considered and that Native American families are kept together whenever possible.
Some of the most significant provisions include:
- Jurisdiction: ICWA generally grants exclusive jurisdiction to tribal courts over child custody proceedings involving Native American children living on a reservation. For children living elsewhere, state courts must transfer jurisdiction to the tribal court unless there is good cause not to, unless the tribe declines jurisdiction.
- Active efforts: Before a Native American child can be removed from their home, state agencies must demonstrate that “active efforts” have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Native American family. This standard is higher than the “reasonable efforts” typically required in other child welfare cases.
- Notice and intervention: Tribes must be notified of any state child custody proceeding involving a Native American child who is a member or eligible for membership. This allows tribes the opportunity to intervene in the proceedings, ensuring their voice is heard and their rights are protected.
- Qualified expert witness: In cases requiring involuntary termination of parental rights, state courts must have the testimony of a qualified expert witness who can provide insight into tribal customs, child-rearing practices, and the potential impact of proposed placements on the child’s cultural ties. This witness must attest that continued custody by the parent is likely to result in serious emotional or physical damage to the child.
ICWA also sets out a ranked order of placements for Native American children who must be removed from their homes. A member of the child’s extended family is the first choice, followed by a foster home licensed or approved by the child’s tribe. The next best choice is a Native American foster family which is licensed or approved by other government authorities. The final option should be a children’s home or other institution approved by a Native American tribe or operated by a Native American organization.
If none of these options is available, the child can be adopted into another family. This decision must be made in the child’s best interests, and there must be clear documentation of the reasons for the choice.
Ongoing challenges
ICWA has profoundly impacted Native American child welfare, significantly reducing the disproportionate removal of Native American children from their families and increasing their placement within Native American homes and communities. It has strengthened tribal sovereignty by affirming tribal courts’ authority and tribal governments’ role in protecting their children.
Despite its successes, ICWA continues to face challenges. Legal challenges, particularly from individuals and groups arguing that the law is racially discriminatory or unconstitutional, have persisted. The Supreme Court’s 2023 decision in Haaland v. Brackeen affirmed the constitutionality of ICWA. However, implementation can still be inconsistent across states, and resource limitations for tribal social services can hinder their ability to fully exercise their ICWA rights.
A Native American birth mother may choose an adoptive outside of her tribe family for her child rather than choosing a member of her family or tribe. In this case, it is essential to work with the tribe to ensure that all the terms of the ICWA are followed. The tribe has the right to intervene in a state adoption if they believe that the law has not been followed or that the child’s best interest are not being considered. It’s better to do the adoption right in the first place than to face upheaval later.