Indian Child Welfare Act Of 1978

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Indian Child Welfare Act of 1978

A law enacted by Congress in 1978 that mandates special provisions for Native American children and their placement into foster or adoptive homes. Under the act, an Indian child's tribe or the Bureau of Indian Affairs must be informed before the child is placed for adoption and preference in placement must be given first to the child's tribe and last to another culture.

Supporters of the law say that, prior to its passage, as many as 25% of Native American children were placed into foster or adoptive homes because of such reasons as a lack of indoor plumbing in the biological parents' home, small houses or other conditions of poverty or social problems.

They believe TRANSRACIAL ADOPTION is not a good policy and believe placing an Indian child with a non-Indian family ultimately causes confusion in the child's sense of identity.

The law requires agencies or anyone involved with placing an Indian child to first inform the tribe or the Bureau of Indian Affairs. Even birthmothers who wish to transfer parental rights to an adoptive family fall under this law, and they must first receive permission from the tribe before an adoptive placement may occur.

There have been several cases of parents (non-Indian and Indian) fighting in court to keep a particular Indian child they have adopted. The tribe has prevailed in some cases and overturned adoptions in several cases, including one in which the adoptive parents were of the child's tribe.

However, in one case of a school-aged Indian child who had been adopted and was being raised in a Caucasian, Mormon home, the tribe allowed the child to remain in the former adoptive home despite the overturning of the adoption. Media attention and the child's expressed desire to remain in the home probably contributed to this decision.

In 1998, after a five-year battle to retain custody of the twins that were placed with them for adoption at the age of two weeks the adoptive parents prevailed. In this case, the couple, the Rosts, had adopted the babies. The birthparents did not tell the couple that the biological father was part (one-eighth) Indian. After placement, the birthfather challenged the adoption under the Indian Child Welfare Act. He was allowed to enroll retroactively in the Pomo tribe, a tribe to which he had not formally belonged. (Nor had he lived on a reservation.)

A California Court of Appeals ruled that the law did not apply because the birthfather did not have true ties to any Indian organizations. The U.S. Supreme Court refused to hear the case and thus the decision stands. The adoptive couple and birth family agreed that the adoptive family would bring the twins to visit their birthparents every other year until they were 18 years old.

The Rosts finally legally adopted the twins at the age of five years. Said Mrs. Rost to the Associated Press, "I don't believe it [the Indian Child Welfare Act (ICWA] was meant to be used in the way it was used in our case. It was put into play to keep white social workers from putting Native American children in non-Native American families."

Despite this decision, ICWA stands as a law and does affect others who might wish to adopt children with Indian ancestry, as well as Native American children and their birthparents.

Those who disagree with the implementation of the Indian Child Welfare Act generally also support transracial adoption. They usually believe that a home in the child's own culture is the first and best choice; however, when a suitable home is unavailable, then a home with a family of another race would be an alternative to consider before making a child wait.

Social workers and proponents of the act argue that there are Indians who are interested in adoption and complain that social workers don't spend enough time on active recruitment.

In her article on the ICWA for a 1997 issue of National Adoption Reports, attorney Christine D. Bakeis said that the special requirements of ICWA have resulted in unfair treatment to Indian children and also a loss of choice by birthparents, who may be overturned in their adoption decision by the tribe. In addition, the law violates the privacy of the pregnant woman, who may be compelled to tell her parents and others of her decision to place the child for adoption, so that ICWA can be complied with. Bakeis says the problems of ICWA can be summed up in its three negative effects. Says Bakeis,

First, when it becomes clear that a child can no longer remain in an abusive setting, the child will either remain in that setting until a placement which satisfied the mandates of the ICWA is available, or be moved from one foster care setting to another when a placement which satisfied the ICWA is open. Both options are equally unpalatable.

Second, caseworkers and attorneys are hesitant to accept relinquishments of, or terminations of parental rights to, an Indian child. Often, this results in Indian children languishing in foster care without permanency planning or adoption.

Finally, employing ICWA's placement preferences often forces courts to overlook the child's best interest. Thus, although Congress declared that our Nation's policy is "to protect the best interest of Indian children," the requirements of the ICWA work against, rather than toward the promotion of this policy.

Christine D. Bakeis, Esq., "The Impact of the Indian Child Welfare Act of 1978," National Adoption Reports (November 1997) 18, no. 11.

Joan Hollinger, Adoption Law and Practice (New York: Matthew Bender, 1988).

Joan Heifetz Hollinger, "Beyond the Best Interests of the Tribe: The Indian Child Welfare Act and the Adoption of Indian Children," University of Detroit Law Review, 66 (1989): 450-501.

Michelle L. Lenmann, "The Indian Child Welfare Act of 1989: Does it Apply to the Adoption of an Illegitimate Indian Child?" Catholic University Law Review, 38 (1989): 511-541.

Nancy Nussbaum, Associated Press Writer, "American Indian Twins Adopted," AP Online, December?8, 1998.

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