Adoptions of American Indian children are governed by the Indian Child Welfare act or “ICWA.” ICWA governs adoptions of all children who are members of an Indian Tribe, or who are eligible for membership in an Indian Tribe.
Indian tribal courts have exclusive power over adoptions of Indian children residing or domiciled within a reservation. State courts share power over adoptions of Indian children living outside of reservations, but tribes have unlimited power to intervene as a party in such proceedings.
Whereas most adoptions require only the consent of the child’s parents or guardians to go forward, in ICWA cases the tribe and child’s relatives must also consent to the adoption. Further, the parent’s consent must be given in writing before a judge, who must explain the consequences of signing the consent, and verify that the party understands the consequences of consenting to adoption.
Indian children must be placed with Indian families, and placement must be within the order of preference dictated by statute or the rules of the tribe. If the child’s parents are unable or unwilling to care for the child, members of the child’s extended family are given first priority for placement, followed by members of the child’s tribe, and finally, members of another Indian tribe. A child may only be placed outside of the order of preference if there is good cause to do so. Relatives must be given notice prior to entry of a judgment of adoption of an Indian child.
Parents may withdraw their consent at any time and for any reason prior to entry of a final judgment of adoption. If the parents withdraw their consent, the child must be immediately returned to their care. Even after the final judgment is entered, the parent may withdraw consent to adoption within two years if they can prove that their consent was obtained through fraud or duress. If a court finds that consent was obtained through fraud or duress, the adoption is invalidated, and the child must be returned to the parent’s care.
In short, failure to comply with the terms of ICWA carries enormous consequences, including substantial delays in the adoption process, and even invalidation of the adoption itself.
If there is any indication that a natural parent or child has Indian heritage, it is imperative that further inquiry be conducted to ensure that the provisions of ICWA are observed. Talk to a McMinnville adoption attorney today to safely navigate your way through adoption of an Indian child.