The federal Indian Child Welfare Act is an important piece of legislation that needs to be fully understood when going through the process of domestic adoption.

What You Should Know About ICWA

Passed in 1978, the law ensures that Indian families are kept together. ICWA also preserves Native culture and history for future generations.

The law covers any “Indian Child” and only applies in child welfare and adoption proceedings. An “Indian Child” is any unmarried person who is under the age of eighteen and is either (A) a member of an Indian tribe or (B) is eligible for membership in an Indian tribe and is a biological child of a member of an Indian tribe.

The individual tribes themselves have the right to determine eligibility for membership of an Indian tribe. The tribe in question must be contacted in order to determine if the child is eligible.

If the child does not meet the official definition of “Indian Child” then ICWA wouldn’t apply to the adoption proceedings. However, other federal and state laws provide protection to relative placement provisions. ICWA also gives families/tribes the opportunity to be heard at a case review hearing.

What Happens Once ICWA is Applied

Once applied to a situation, ICWA allows the child’s family/tribe an opportunity to be involved in decisions affecting services for the Indian child. ICWA also sets trial requirements regarding removal and placement of Indian children in foster or adoptive homes. The law allows the child’s tribe to intervene in the case. ICWA’s preferences prioritize keeping Indian children placed with extended relatives/other Indian families.

When a child is removed, the state the child is in is required to contact the tribe. This is less clear in private adoption situations, but the best practice is to contact the tribe no matter what. Indian children can be adopted out of state.

For more information on this topic, talk to your adoption professional to find out how ICWA will affect your adoption journey.


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