November 29, 2006
Dear CAICW: My husband and I are looking to adopt a child domestically and are open to going through private adoption. We have heard that if we find a birthcouple where one of them is Native American then we might have to deal with the ICWA. I looked on your website and at the law of the ICWA and I still have some questions regarding eligibility of the child for ICWA.
1. If the birthfather’s parents (biological grandparents) are registered members of a tribe, but the birthfather is not, then can the child be eligible for enrollment or membership of a tribe, or be possibly recognized by the tribe? In the ICWA it says that a child can be eligible but also has to be the biological child of a member. What if they biological father or mother is not a registered member but is eligible to be a registered member of a tribe? I guess what I am asking, is if the biological mother or father is not a registered member of a tribe, then does the ICWA apply?
2. What if the birthmother or birthfather, is not a registered member but is eligible to be one, lies and does not state on their paperwork that they are Native American and eligible for tribal membership? If they go ahead and sign over their rights and the child is placed in our home, can the biological grandparents come back years later if they find out about the placement and claim the child has tribal rights or is eligible for tribal membership? We are just trying to understand all of this and to make sure we are educated as we go forward with private adoption.
Thanks for your time and advice, Adoption Hopeful
Again, we are not attorney’s. Our response is pure layman’s conjecture, and should not be taken as legal advice. Parents and care-givers can and should consult a lawyer if they think they need one.
#1) If the child is eligible for membership, but the parent has chosen not to enroll his or herself with the tribe, does ICWA apply?
That is a good question. By letter of the law, it would appear that ICWA would not apply. However, if a tribal government has decided to pursue custody of a child under these circumstances, we would advise you obtain the counsel of a good lawyer to argue the point. Without a good lawyer, people have been known to lose even good arguments protesting ICWA application.
#2) If a parent has hidden his tribal heritage, can the tribe intervene years later when this is revealed and take the child away?
these are the areas that th e current law seems to address,
1911 (c) says “an Indian child, the Indian custodian of the child and the Indian child’s tribe shall have a right to intervene at any point in the proceeding.”
1913 (a) says, ” Any consent given prior to, or within ten days after, birth of the Indian child shall not be valid.”
1913 (b) says, ” Any parent or Indian custodian may withdraw consent to a foster care placement under State law at any time and, upon such withdrawal, the child shall be returned to the parent or Indian custodian.”
1913 (c) says, ” In any voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent.”
1913 (d) says, ” After the entry of a final decree of adoption of an Indian child in any State court, the parent may withdraw consent thereto upon the grounds that consent was obtained through fraud or duress and may petition the court to vacate such decree. Upon a finding that such consent was obtained through fraud or duress, the court shall vacate such decree and return the child to the parent.No adoption which has been effective for at least two years may be invalidated under the provisions of this subsection unless otherwise permitted under State law.”