July 10, 2009
I have a very unique situation. I am pregnant with Twins.
The father of these children is Native American. But he is born in Canada and his tribe a a first Nations tribe. I am so confused…
At first I wanted to put up these children for adoption cause I was over whelmed.. but then I learned of the ICWA.. and the adoption agency I am working with basically have stopped contacting me because my situation is hard for them to work with.. because they arent sure how to. So now I feel so lost and alone.
Anyways I have decided to keep these kids now because my family is going to help me. But im scared now because I got a letter from his tribe saying they do not allow adoptions outside of the “first nation’s community” And they try to keep the children with the tribal community. But how can they interfere with these kids being with me… their mother? Or can they?
I figured maybe they could later on because I am not Native. And how are the Rules an different if I am from the US and the father and his tribe are from canada? Thank you
Response– Disclaimer – I am not an attorney. I can only speak one parent to another.
Thanks for writing. I am a non-native mother of enrolled children as well.
First of all, you are their mother. You are right that since no adoption is taking place, the Indian Child Welfare Act doesn’t apply and can’t be used against you.
The Indian Child Welfare Act is only supposed to be used when there is a “change of custody” occurring with the children. There will be no “change of custody: happening with your children, since you will be keeping them.
But further, the Canadian tribe might be just blowing steam, trying to pull a power trip on you. I am not an attorney and can’t give legal advice, but I do know that Canada does NOT have an Indian Child Welfare Act. There is no law in Canada that demands the children stay with the tribe.
And I don’t think the American ICWA applies to Canadian Tribes. Here is the definition of Indian Tribe from the ICWA law. (below) Canadian Tribes aren’t eligible for services from our Secretary of Interior. Let me know if you have trouble understanding these definitions….
(8)”Indian tribe”means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village as defined in section 1602(c) of title 43;
(9) ‘‘parent”means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established;
(10) ”reservation” means Indian country as defined in section 1151 of title 18 and any lands, not covered under such section, title to which is either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation;
(11)”Secretary”means the Secretary of the Interior;
About the definition of “parent, it appears that if the paternity is not acknowledged or established, the ICWA also doesn’t include him as a parent.
The American ICWA applies only in a Child Custody Proceeding, as defined below:
”child custody proceeding”shall mean and include –
(i) ‘‘foster care placement‘‘ which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;
(ii) ”termination of parental rights” which shall mean any action resulting in the termination of the parent-child relationship;
(iii) ”preadoptive placement” which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and
(iv) ‘‘adoptive placement’‘ which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption. Such term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents.
Does all this help? I think you are okay and don’t have to worry. I would just be careful about taking the babies up to that reserve, because I’ve known mothers who have lost their children when they’ve stepped into tribal court. Tribal courts do whatever they feel like, and once they do it, the federal government does little to help get the kids back.
UPDATEJuly 10, 2009
First of all I wanted to say than you… I can actually breathe now.
But there is a small possibility that he will be on the birth certificate later because he can order a paternity test to establish that they are his kids. Will he be able to use his tribe to fight for custody? Not sure if you know the answer on that. So i guess these children cant even be registered to his tribe because they are US citizens?
Thank you again.
without your words I probably would be stressed out to death by now.
Response–So glad you can breathe again. 🙂
I can’t say that they won’t fight for custody. Sometimes the tribes do dumb things. But the law is on your side, and they can only go under Canadian law, which doesn’t apply to you.
Further, I don’t think Canadian law allows them to take babies without you being proven unfit.
Canadian law doesn’t apply to you, and the ICWA doesn’t apply to them.
Stay off that reserve, is all I can say, because many non-native parents have written to us about the troubles they had after taking their enrollable children within tribal boundaries, or allowing their children to go visit there. That’s when some tribes have stepped in (at the other parent’s request) and transferred custody in their own courts.
The children can still be registered with the tribe, but only if paternity is proved.
But even if he does end up on the birth certificate, that doesn’t mean he can take the kids from you. You said your family is helping you. I’m so glad for you. That’s a blessing that they are willing to help.
Rest easy, Mama. God’s watching over your babies.
UPDATEJuly 10, 2009
Thank you so much for all your kind words.
I am pretty broke as of now and might be on welfare at the time the children are born.. like food stamps. And state insurance for the children. Do you think they would consider that into me being an unfit parent? Have you seen where they have shown a mother on welfare is not a good mother.. Ofcourse taking time off of work being pregnant with twins alone.. plus having a disabled son I wanted to use all the help I could get even if its temporary.. but if being on food stamps means I will have my kids taken away I wont take the chance..
I cant thank you enough for everything.
God Bless You
Response–I understand. Don’t worry. Welfare and food stamps won’t be a reason they can use. Most of the people on the reserve get government help, so they can’t really hold it against anyone else.
I think that, in general, you shouldn’t have any real trouble. The tribe might have sent the letter merely because he told them you were going to put the kids up for adoption. Now that you aren’t., they probably won’t do anything, and they really can’t do anything. I’m not even sure if they could have intervened in an adoption. I don’t think you need to worry.
UPDATE July 10, 2009
Thank you Lisa.
I can relax now and try to finish making this pregnancy work.