The Baby Veronica case drew a media spotlight to the federal Indian Child Welfare Act (ICWA) in late 2011, when Dusten Brown was granted custody of his two-year-old biological daughter, and again in the summer of 2013, when the Unites States Supreme Court ruled that the ICWA did not apply in Mr. Brown’s situation and custody was transferred back to the adoptive parents. Both decisions polarized the adoption community and, unfortunately, scared some prospective families away from adopting a child with Native heritage. Regardless of your point of view about the final decision, this is a bad outcome—adoptive parents should be aware of the ICWA, but they need not be afraid of it.
What is the Indian Child Welfare Act?
The Indian Child Welfare Act is a federal law passed in 1978. The Act was intended to curb the practice of separating Native American children from their tribes and placing them for adoption with white families. Many states have other statutes similar to the federal ICWA. Although the ICWA was intended to address the adoption of children who had been removed from their homes by the state, it applies to private, voluntary placements as well.
As a prospective adoptive parent, the most important thing to remember about ICWA is that special rules may apply if the child has any Native American or Alaskan Native heritage. Any experienced adoption professional will inquire about Native heritage very early in the process, and know what steps to take if ICWA might apply.
When does ICWA apply?
ICWA applies to the adoption of any child who fits the Act’s definition of an “Indian child.” Under the federal ICWA, an “Indian child” is one who is either a member of a federally-recognized Indian tribe, or one who is eligible for membership and also the biological child of a member. This sounds simple, but only a tribe can determine who is a member, and each tribe defines membership differently. A biological parent could be a member just by virtue of blood quantum, even if he or she never formally enrolled.
As to the practical process, the agency caseworker or the attorney will simply ask the expectant mother (and father, if available) whether she is aware of any Native American or Alaska Native heritage. If the answer is yes, she is asked what tribe, whether she is enrolled (and her enrollment number, if she knows it), the names of her relatives with tribal ancestry, and whether any of those relatives are enrolled or have lived on a reservation. The adoption professional should be the one to ask these questions and to communicate with the tribe. Whenever a parent has or may have Native ancestry, the only truly safe practice is to notify the tribe’s ICWA office and allow it to confirm whether the child meets the definition of an “Indian child.”
In cases when the match occurs shortly before or after birth, you will want to notify the tribe right away. Then, while you are waiting for a response, the safest route may be to follow the ICWA procedures for termination of rights, in case ICWA does apply, though not everyone chooses to do this.
Remember that the child’s status determines whether ICWA applies to an adoption. If one parent is a member of a tribe and the child would be eligible for enrollment, ICWA’s procedures apply to both biological parents, even if the other has no Native heritage whatsoever.
If ICWA does apply, what happens?
The ICWA trumps state law regarding consent, revocation, and termination of rights. If ICWA applies, the biological parent(s) cannot consent to the adoption until 10 days after the child is born, the consent must be given in front of a judge, and it is revocable until the adoption is finalized.
The tribe has a right to be involved in the adoption of an Indian child. It may request notice of hearings or copies of paperwork, become a party to the adoption proceedings in state court, or require that the adoption be handled by a tribal court. There are more than 550 federally recognized tribes in the U.S., and each handles ICWA cases differently. Some tribes aggressively pursue jurisdiction over adoptions, while others just ask for copies of paperwork. As a practical matter, the more distant the Native ancestry, the less involved the tribe is likely to be, but if a tribal court takes jurisdiction, it will be very difficult for non-Native parents to complete the adoption. This is most likely to happen when a biological parent has a strong connection to a tribe, lives on a reservation, and/or has relatives with strong tribal connections who oppose the adoption plan.
Could the Baby Veronica case happen to me?
Almost certainly not. The Baby Veronica case involved some very unusual facts, including confusion over the spelling of the biological father’s name and a long delay in proceedings due to his military service. Furthermore, the Baby Veronica situation could not even occur in states that require notice of adoptions to unmarried fathers, and most states do. Finally, the Supreme Court’s ruling clarified and limited the universe of cases to which the ICWA applies, which will provide adoptive and biological parents with greater certainty in the future. As long as adopting parents investigate ICWA early in the process, and adhere to any applicable rules, the law should not be a reason to avoid adopting a child of Native heritage.