March 3 , 2008
I am an adoption counselor at a private agency. I am working with an expectant mother who has chosen to place her baby for adoption with our agency. She and the birth father have found a family they want to raise their son and their adoption will be open. The birth mother is ¼ Native American and not an enrolled member and the birth father has no heritage. The birth mother placed two other children for adoption in the past with the tribes blessing. Now, the tribe has said they have chosen a family on the reservation to adopt this baby and they will not budge. We thought that the child had to be an enrolled member or one of the birth parents in order for a tribe to take a child – especially in a voluntary relinquishment. Do you have any information that would help us? Thank you
Response – Disclaimer – I’m not an attorney, and the only advise I can give the couple is to get a good attorney as soon as possible. Too many families don’t get an attorney right away, thinking this isn’t a big deal, and it really is. They need to find a GOOD attorney that knows the law well and is able to fight for the family’s rights. Encourage them not to settle with an attorney that is going to roll over for the tribe – afraid to stand up and demand that the law be followed. Too many tribes, having more money and access to attorney’s than many of the low-income families in situations such as this – can be somewhat bullying, and sometimes push for their will even if it has nothing to do with the law.
…. as I understand it, one parent to another – If the mother isn’t enrolled – the tribe shouldn’t be able to usurp the birth family’s wishes. Again, I’m not an attorney and am not giving legal advice. That’s just what it seems it says –(1903 (4) – printed on our website) – – http://www.caicw.org/icwalaw.html )
……get an attorney right away, try to keep in county or state court rather than tribal court, and make it clear from the start that this is NOT an ICWA case, as the mother is not enrolled. Keep that mantra up. This is NOT an ICWA case. Get that nipped in the bud right away in order to get this over with quickly – with the least amount of cost.
Further – 1911 (b) “absent objection by either parent” – It seems to me that this is saying that the tribe can transfer the case to tribal court, unless one of the parent’s objects. Again, I’m not an attorney – but I would tell the state court, if it were me, that I strongly object to any type of transfer.
And don’t forget to pray – we’ve see amazing answers to prayer.
Bless you all – I pray that the best interest of the child is truly upheld, and the child is placed in the home God has prepared for it.
UPDATE March 4, 2008
Thank you so much for your quick reply. Your information has helped me understand the ICWA law. We have contacted a very good attorney. It is clear by this tribe’s own membership code that the child must be ¼ blood quantum and have a biological parent who is a member in order to be eligible. This child is 1/8. Although I think the adoptive parents would most likely win this case, the cost of litigation (financially and emotionally) has to be seriously considered. It is so sad that the birth parents may not get their first choice in families because of this. The family has to be willing to endure thousands in court costs. Thank you so much for the work that you do. Blessings,