By Adoption at a glance might sound very daunting and complicated at a go, but it isn’t. We agree that several intricate procedures revolve around adoption, but it is not as hard as you think. Native American adoption is now a “hot topic” in the American societal database. People are now inclined towards adopting babies from a diversified background to promote inclusiveness. However, the laws in that sphere are different. This article will tell you everything about the native American adoption laws. This blog will discuss in detail the various aspects of ICWA and how it is enforceable in today’s world.
Who are Native Americans?
Native Americans or the indigenous people of America are those people who were native to a specific region of America before the European settlers even arrived.
The native Americans are those people who were the original settlers of the US belonging to different ethnic groups. These indigenous people were primarily hunters and gatherers. However, some of these people also practiced agriculture and aquaculture.
In short, native Americans are those people who lived in America long before European colonization.
Understanding the Indian Child Welfare Act
The Indian Child Welfare Act was codified in the year 1978. The United States federal law governed this jurisdiction to remove any American Indian children from their families and foster care.
This law was created to facilitate the tribal government to have exclusive jurisdiction over the children belonging to their race. This gives them a window of reservation, which is crucial to give them a proper representation.
This Act comes up with a strong voice that talks about child custody and other proceedings concerning these native children.
History of the Indian Child Welfare Act
This Act was enacted back in 1978. It was enacted to curb the disproportionately high rate of forced removal of native children from their homes. This means they’re getting uprooted from their overall Native American culture.
Before the enactment of this Act, native children were uprooted from their ancestral heritage and had no connection with their diverse heritage. They had no idea about their culture, and they were getting raised differently.
The tribal community became extremely vocal after this and decided that if this went on, it might cause emotional damage to many children. These children now losing touch with their heritage and culture feel like they belong nowhere and don’t know what to call home.
Finally, Congress recognized these interests and testimonies and decided to pass an act that would cater to the welfare of the Native American children. Thus, subsequently, the Act was passed, and it helped the native American children to connect with their identity and culture.
Legal Challenges of the Indian Child Welfare Act
It was not a cakewalk for Congress when they introduced the ICWA. There were many obstacles the government and the Native Indian community went through.
In the case of Bracken vs. Zinke in 2018, Federal district judge Reed O’Connor struck down certain parts of the law that seemed unconstitutional to him. He claimed that such clauses mandated racial preference.
In 2018, the United States Court of Appeals for the Fifth Circuit stood by the legality of O’Connor’s judgment. The Fifth Circuit decided that since it violates different aspects of tribal sovereignty, it can pose some serious challenges.
However, in 2019, it was decided that the Act looks after the welfare of the native Americans and thrives hard to provide equal protection to their culture. Hence the ICWA remained in effect. The stronghold of ICWA was even established in June 2023 after the case of Haaland vs. Brackeen.
Types of Jurisdictions in the Indian Child Welfare Act
There are different jurisdictions that interpreted the ICWA. Let’s see what they are and how they were interpreted:
Minimum Standards
ICWA aims to set a minimal number of federal standards for all Native child custody proceedings. Be it adoption or voluntary termination of parental rights, everything that comes under the ICWA is safeguarded with minimal amounts.
ICWA also specifies that the state courts won’t have any jurisdiction over the adoption or custody protection of any native American children who are staying in their own tribal reservation.
ICWA also plays a crucial role in child custody proceedings. This means that ICWA plays an integral part in deciding different foster care placements, termination of parental rights, and also pre-adoptive placements.
On the other hand, ICWA doesn’t cover any hearings of child custody during the divorce proceedings. Even when its the case of child delinquency, the ICWA takes no responsibility for it.
Exclusive Tribal Jurisdiction
In this case, the native tribe has special jurisdiction over the child residing within the domicile of the tribe’s land. Be it a reservation land or other kinds of tribal lands, it is applicable in both ways.
The federal government trusts the tribal community on this front and has given them the freedom to decide the child’s future to protect the communities against any sort of alienation.
This case was thoroughly discussed in the Supreme Court case of Mississippi Band of Choctaw Indians vs. Holyfield in the year 1989. In this case, the court ruled that the ICWA offers the tribal court exclusive jurisdiction over any case. Based on the facts of this case, if the child’s parents are domiciled under the reservation, then their opinions won’t matter in terms of a custody case.
Concurrent Jurisdiction
This specifically shares an exclusive jurisdiction between tribal and state courts. There have been several issues where state courts were criticized for not adhering to the law requirements. Sometimes, the tribal courts do not have a proper and exclusive jurisdiction, and that is when to sway toward the concurrent form of jurisdiction.
In concurrent jurisdiction, it helps out with custody proceedings of the native American children, who may or may not reside in the domiciled tribal lands. Under these jurisdictions, the ICWA expresses a specific preference for tribal jurisdiction where it specifies the “no-no” parts of child welfare.
Procedures Under the Indian Child Welfare Act
The procedures under the ICWA are extremely intricate and is diverse in nature. Here are some curated procedures that you can find under ICWA.
Notification and Rights
In this case, when you as a party seeking for a child’s placement, must notify both the parents and the child’s tribe 10 days prior to the proceeding. There can be also provisions for emergency proceedings whose process is also enlisted under ICWA.
However, if the state cannot determine who the parent or the tribe might be, then in that case, the state has to notify the Secretary of Interior. These notifications should contain all kinds of requisite information for 25 CFR 23.111. Failing to provide these notices can even result in a jurisdictional defect that can overturn the entire procedure.
Intervention
The tribe and the parents of the Indian custodian might have some unqualified rights to intervene in a case related to foster care or even terminating parental rights. These interventions however can take place at any point in time and preferably not at the beginning of the procedure. However, these interventions also do not apply during the pre-adoption or even during the adoption proceeding as well provided it’s talking about terminating parental rights.
Transferring the Case to Tribal Court
Transferring the case to tribal court comes with several small procedures. Let’s see what they are:
Motion to Transfer
When it comes to foster care or even terminating parental rights, where the tribes can exercise concurrent forms of jurisdiction, the custodian of the child can transfer the case from the state to the tribal court in no time. The state courts then look into the Adoption and Safe Families Act and decide whether they will deny or accept such transfers. Once the motion of transfer is made, the tribal court will then receive the case.
Objective to Transfer
If you’re a biological parent of a child, irrespective of your ethnicity, you can object and veto a proposed form of transfer of a case to a tribal court. A prospective parent, on the other hand, objects and causes under good cause provision. Sometimes the parents veto the transfer and hence it remains in the state court.
Declination By the Tribal Court
The tribal courts can either decline or accept the transfer made from the state court. Suppose you as parents move the case to somewhere else and the tribe declines to accept such jurisdiction. This can happen due to a lack of funding for programs that might support both the child and the tribal court at the state level. Even though the tribal court might not look like a traditional tribunal, there can be other administrative bodies that empower the tribe to act on their matters of custody.
Active Remediation Efforts
ICWA actively requires efforts for existing families to rehabilitate the root cause of problems that are prior to the removal of the child. In this case, many tribes focus on intercession, prior to crisis. This way ICWA helps these at-risk Indian families to heal properly which would make a dramatic improvement for both the child and the family.
Final Thoughts…
There you have it! Now you know the basics of the Native American adoption procedure. We hope this blog was informative and helpful. However, is there anything we missed out on? Let us know.
Read More…
What Is Foster Care Adoption? Difference Between Foster Care And Adoption
A Guide To Adopting Kids In The US
Who Is A Child Abuse Lawyer? What Are Their Roles?
What's your reaction?
