Children's Administration, Department of Social and Health Services
Children's Administration, Department of Social and Health Services
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Indian Child Welfare Manual

ADOPTION AND THE INDIAN CHILD WELFARE ACT

Craig J. Dorsey*

Fifteen years after passage of the federal Indian Child Welfare Act (ICWA),[50] confusion is rampant over several aspects of the statute. In no area is the confusion more evident than it is regarding the adoption of Indian children. Conflicting decisions from different states, the refusal of the U.S. Supreme Court to provide guidance or resolve such conflicts, and constant attempts by private adoption attorneys to limit or bypass application of the ICWA makes this a treacherous area of the law in which to practice.[51]

The ICWA was passed by Congress in 1978 in response to the wholesale removal of Indian children from their families and communities and their adoption by white families. Statistics compiled as part of the legislative process showed that between 25% and 35% of all Indian children had been separated from their families, often removed by child welfare workers who had no knowledge of Indian culture and who were convinced that removal of the children would automatically be in their best interest. Of these children, 85% to 90% had been placed in non-Indian foster or adoptive homes.[52] The adoptive placement rate of Indian children was several times that of non-Indian children.[53] These statistics, said Congress, amounted to acrisis of massive proportions.[54] As part of the statute itself, Congress found that:

*Originally published in Youth Law News , November-December 1993. Reprinted by permission of the author, who was formerly with Oregon Legal Services and is now in private practice in Portland, Oregon. A substantial portion of the author’s practice involves the Indian Child Welfare Act. He is admitted to practice law in Oregon, Washington, and New Mexico. For further information about the issues discussed in this article, contact him at (503) 790-9060.

An alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies. . . [and] that the States, exercising their recognized jurisdiction over Indian child custody proceedings. . . have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.[55]

Although it has relatively clear goals, before it was finally passed the ICWA had been modified by Congress several times over four years, and had evolved into a complex, comprehensive piece of legislation that was not reconciled to ensure consistent and complementary language. The ambiguities and gaps that result from this tortuous process have led to conflicting and inconsistent implementation, exacerbated by the reluctance of many state courts, despite statutory mandates, to relinquish jurisdiction to tribal courts or to follow federally imposed standards.

Framework of the ICWA

The Act recognizes an inherent conflict between state and tribal courts on the issue of child custody proceedings, and comes down solidly in favor of tribal courts making decisions regarding the custody of Indian children. The ICWA applies to any case in which two conditions are satisfied: (1) the child is an Indian child”;[56] and the proceeding is achild custody proceeding. [57] It gives tribal courts exclusive jurisdiction over proceedings concerning Indian children who reside or are domiciled on the Tribe’s reservation. With regard to other Indian children, state and tribal courts have concurrent jurisdiction. In this instance, however, a state court may transfer the proceeding to tribal court if asked to do so by the either parent, the child's Indian custodian, [58] or the Tribe, unless there is good cause not to do so or unless either parent objects.

Removal of an Indian child from his or her family or community is more difficult at each stage of a proceeding under the ICWA than in a state court dependency proceeding. For example, placement of a child in foster care is prohibited unless there is a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child[59] --a higher standard of proof than is required in most dependency proceedings. Similarly for termination of parental rights, the evidence must establish beyond a reasonable doubt that continued parental custody would result in serious emotional or physical damage. Perhaps the most significant distinction, however, lies in the role given to Indian Tribes, who have the right under the ICWA to intervene in custody proceedings and to speak with a voice essentially equal to that of the parents.

The U.S. Supreme Court has addressed the ICWA in only one case: Mississippi Band of Choctaw v. Holyfield .[60] That case involved twins born to Indian parents who lived on the Choctaw Reservation in Mississippi. The babies were born 200 miles away from the reservation, however, and both parents signed consent forms for a non-Indian couple, the Holyfields, to adopt the children. A final decree of adoption was granted by a state chancery court when the children were only 18 days old.

Two months later the Choctaw Tribe moved to vacate the adoption, on the grounds that, under the ICWA, the tribal court had exclusive jurisdiction over a custody proceeding involving these children. The state court refused to set aside the adoption decree. It said that the Tribe had never obtained jurisdiction over the twins since they had never been on the reservation and the parents had gone to some effort to see that the birth took place away from the reservation and promptly arranged for the adoption. The Mississippi Supreme Court affirmed this decision, saying that the twins’ domicile was that of their adoptive parents, not their birth parents.

The U.S. Supreme Court reversed. Noting that the sole issue before it was whether the twins were domiciled on the reservation, the Court first addressed whether federal or state law should be used in

answering this question, and concluded that federal law was controlling. Applying federal law, the Court said that children have the domicile of their parents and can be domiciled in a place where they have never been. The twins in this case thus were domiciled on the Choctaw Reservation. The fact that their parents had consented to adoption could not defeat the Tribe’s jurisdiction; under the ICWA the tribal court had exclusive jurisdiction the moment they were born, regardless of where that was. The Court was careful to note that the question of where the twins should live was not before it; the sole issue was who should make the custody determination, and the law places that decision in the hands of the Choctaw tribal court. [61]

The ICWA’s Approach to Adoption

The ICWA definition of child custody proceeding includesadoptive placement,which meansthe permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption. [62] This definition includes both voluntary and involuntary adoption proceedings,[63] and includes off-reservation adoptions.[64] One section specifically addresses voluntary adoptions,[65] but coverage of adoption is spread throughout the ICWA and in many instances is addressed by implication or inference rather than directly.[66]

Procedural requirements for voluntary relinquishment of a child for adoption are quite stringent. Consent must be executed in writing before a judge of a court of competent jurisdiction,[67] who must certify in writing that the terms and consequences of the consent were explained in detail and were fully understood by the parent, and that the parent

understands English or that the consent was adequately interpreted. Any consent given before birth or within ten days after birthshall not be valid. [68] The parent of an Indian child who consents to adoption of that child has a right to revoke that consentfor any reason at any time prior to entry of a final decree of adoption, [69] and to obtain the return of the child, even if the parent had previously executed an irrevocable consent under state law.[70] If the adoption of an Indian child is vacated or set aside or the adoptive parents voluntarily consent to termination of their parental rights, the biological parent has a right to return of the child unless a showing of parental unfitness can be made.[71]

The ICWA provides a placement preference order for adoptive placements of Indian children, whether voluntary or not: (1) a member of the extended family; (2) another member of the child’s Tribe; or (3) another Indian family. This order of preference must be followed by the state court in the absence ofgood cause to the contrary. [72]

Despite the detail and specificity of these provisions, however, the only type of adoption about which there is complete clarity is that of an Indian child domiciled or residing on a reservation. In this case, the Tribe has exclusive jurisdiction to determine the child’s custody, including adoptive placement.[73] Moreover, as the U.S. Supreme Court ruled in Holyfield , domicile must be interpreted broadly, consistent with the purposes of the Act, to protect the Tribe’s jurisdiction over its children.

Ambiguities Abound in ICWA

Overall, the ICWA’s treatment of adoption is riddled with ambiguities which many state courts have seized upon to limit application of the Act. In addition, sections of the statute dealing with issues other than adoption do not mesh neatly with the adoption language to form a cohesive whole.

The notice provision of the ICWA,[74] for example, requires notice by registered mail tothe parent or Indian custodian and the Indian child’s Tribe in any involuntary proceeding in a State Courtseeking foster care placement of or termination of parental rights to an Indian child. It says nothing about adoption proceedings, although if Indian Tribes do not receive notice of such proceedings, they cannot express their interest in tribal children and cannot present placement options which comport with the placement preferences of the ICWA. Most courts have required notice to Indian Tribes of both voluntary and involuntary adoption proceedings, and some states have legislated notice to Indian Tribes for voluntary adoptions in their state codes.[75] At least one state, however, Alaska, has ruled that Indian Tribes are not entitled to any notice of voluntary adoption proceedings under the ICWA,[76] under the rationale that Congress made a considered choice in crafting the notice provision of the Act. Adoption attorneys throughout the country have seized on this Alaska Supreme Court decision to avoid giving Indian Tribes notice of voluntary adoption proceedings under the ICWA.

Another example involves the right of Indian Tribes to intervene in state court adoption proceedings. 25 U.S.C. sec. 1911(c) gives an Indian Tribe a right to intervene inany State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child.The language makes no distinction between voluntary and involuntary proceedings,[77] and it does not specifically address adoption proceedings.[78] Some states have bypassed this problem by granting Tribes permissive intervention under state law, based on the ICWA’s recognition of an Indian child’s critical interest in the placement of its children.[79] Alaska, without any reasoning of discussion, has held that the ICWA’s right of

intervention does not extend to voluntary proceedings.[80] This holding seems directly in conflict with the Supreme Court’s Holyfield decision.

Other ambiguities have also been resolved in case law in state courts. For instance, the Act has been held to apply to adoptions by stepparents,[81] grandparents,[82] and surrogate parents;[83] to both the Indian and non-Indian family of an Indian child;[84] and to an Indian adoptive parent of an Indian child, but not to a non-Indian adoptive parent.[85] An unwed father has standing to invoke the protections of the ICWA once paternity is established.[86] The ICWA applies from the time that eligibility as an Indian child as defined by the Act is established.[87] An Indian custodianas defined by the ICWA has the same rights as the parent of an Indian in any adoption proceeding.[88] An early argument was made that the ICWA should not extend to independent adoptions since congressional findings in the ICWA[89] cite the problem to be remedied as the removal of Indian children bynon-tribal public and private agencies , but the case law has rejected this distinction.[90]

It is voluntary placement of off-reservation children, however, that has caused the greatest conflict. The great emphasis the Holyfield Court placed on in its policy discussion of the Tribe’s interest in child custody proceedings suggests that tribal courts should have jurisdiction in these cases.Tribal jurisdiction was not meant to be defeated by the actions of individual members of the Tribe, for Congress was concerned not solely about the interest of Indian children and families, but also about the

impact on the Tribes themselves of the large numbers of Indian children adopted by non-Indians. [91] Further, the protection of this tribal interest is at the core of the ICWA, which recognizes that the Tribe has an interest in the child which is distinct from but on a parity with the interest of the parents. [92] Nevertheless, the Court did not directly address the voluntary adoption of off-reservation children, and a number of state courts have taken advantage of the resulting vacuum to resist strenuously the implementation of the spirit of the ICWA.

TheExisting Indian FamilyException

Several states have created a judicial exception to coverage of the ICWA, primarily in the area of adoption, where the Indian child is being given up for adoption by the non-Indian biological parent. Referred to as theexisting Indian familyexception to the ICWA, these cases have ruled that the ICWA does not apply unless the child has been living in an Indian environment and is being removed from the Indian family. [93] After Holyfield , some courts construed the decision quite narrowly and held that it did not affect their previous rulings creating the exception.[94]

The most extreme application of theexisting Indian familyprinciple occurred recently in Washington, where the State Supreme Court ruled that the ICWA did not apply if the Indian child is not being removed from an Indian cultural setting, the natural parents have no substantive ties to a specific Tribe, and neither the parents nor their families have resided or plan to reside within a tribal reservation.[95] This decision essentially allows state courts to decide who isIndianenough for the ICWA to apply, and would have the effect of limiting application of the Act only to reservation-based Indian families.[96]

Several other states have expressly refused to adopt such an exception.[97] The existing Indian family exception is in fact contrary to a line of ICWA cases holding that one purpose of the act is to give Indian children who have never lived in an Indian community an opportunity to develop their Indian identity.[98]

No resolution of these conflicting lines of cases is in sight. The United States Supreme Court has refused to review this issue despite at least four petitions for certiorari. Proposed amendments to the ICWA were drafted in 1987 to address this issue, but were not acted on because Congress wanted first to see what the Supreme Court would do with the issue.[99] Congressional Indian committees also believed that the Supreme Court’s Holyfield decision had resolved the issue, but are now once again considering proposed amendments, given the continuing conflict.

Adoptive Placement Preferences

A final major issue raised by the ICWA’s treatment of adoption is that of the placement preferences specified in the statute. This topic usually arises in one of three contexts: when the parent who consented to adoption revokes that consent and seeks return of the child; when the non-custodial parent tries to obtain custody of an Indian child after the custodial parent has consented to adoption by a third party; or when the parents have consented to adoption by someone outside the placement preferences of the ICWA and someone within those placement preferences asks that the child be placed with him or her.

The placement preferences of the Act must be followed in the absence of good cause to the contrary.[100] Guidelines drafted by the Bureau of Indian Affairs set out in detail what is necessary to comply with the placement preferences or to justify an alternate placement.[101] The Act itself requires states to maintain records of efforts to comply with the placement preferences and to make these records available to Indian Tribes.[102] In reality, however, in most independent adoptions, no such efforts are made; instead, the Indian child is placed immediately with non-Indians and any effort expended is to avoid application of the Act.

There is little doubt about the outcome when a parent revokes consent: the child must be returned.[103] Persons seeking to adopt an Indian child must accept this risk,[104] and one case held that adoptive parents cannot have any expectation that a consent to adoption may not be revoked before parental rights are terminated.[105] “Bonding is not the only consideration to be used by the court in deciding the custody of an Indian child; in many cases the adoptive parents must take responsibility for having caused bonding to occur when their actions violated the ICWA.[106]

The outcome is less clear when the non-custodial biological parent (usually the father) seeks custody of an Indian child when the birth or custodial parent has consented to adoption of that child by (usually) non-Indians. The ICWA does not protect the parental rights of non-custodial parents of Indian children.[107] Where the non-custodial father knows about the existence of the child, however, but fails to establish a legal relationship with a reasonable time, it has been held that this failure constitutes good cause not to follow the placement preferences of the Act and not to place the child with him.[108]

The third situation arises when the parents of an Indian child consent to adoption of their child bystrangers,even when relatives or other Indians want custody of the child. In most of these cases the consent parents consciously desire that the child not be raised in an Indian environment. The ICWA states that the placement preference of the parent shall be consideredwhere appropriate, [109] but gives no guidance as to when appropriate circumstances exist. Legislative history states that the purpose of the section is to protectthe rights of the Indian child as an Indian and the rights of the Indian community and Tribe in retaining its children in its society. [110]

This situation thus presents the competing legal rights of parents, children, and Indian Tribes. It is generally presumed that parents have the right, at least in a voluntary proceeding, to control the placement of their children. In the on-reservation context, however, the U.S. Supreme Court has ruled that the interests of a Tribe in its children are at least as great as the interests of the parents, and that the actions of the individual parents cannot defeat the purposes of the ICWA.[111] Some courts have applied this holding in the off-reservation adoption context as well.[112] At least one court has ruled that an Indian Tribe’s interest in its children is not as strong as the interest of the parents in an off-reservation setting.[113]

Thus, it is up to the trial court to determine whether good cause exists under the ICWA not to follow the placement preferences of the ICWA. An Indian relative has a statutory right to intervene in an adoption proceeding and express his or her interest in obtaining custody of the child under the Act.[114] In deciding whether good cause exists, the state court may consider factors such as the best interests of the child, the wishes of the biological parents, the suitability of persons preferred for placement, the child’s ties to the Tribe, and the child’s ability to make any cultural adjustments necessitated by a particular placement.[115]

In reality, the application of these factors will make it almost impossible for an Indian relative to obtain custody of an Indian child who has already been placed in the home of non-Indians.[116]

Conclusion

As this article makes clear, adoption under the ICWA is a complex and evolving area of the law with many inconsistent and contradictorycontrollingprinciples. Conflict under the ICWA is unlikely to abate as long as the market for adoptable Indian babies remains so strong. Adoption attorneys have been very creative about avoiding application of the placement preferences of the Act or of application of the Act itself—for example, by placing the child with the prospective adoptive parents months before filing an adoption petition, failing to notify the Tribe, routinely stating on consent forms that the child is not an Indian or that the ICWA does not apply, sending U.S. Indian children to Canada or Canadian Indian children to the United States to avoid the ICWA. At the same time, Indian Tribes will persist in asserting their interest in Indian children. As a result, the conflict over adoption of Indian children by non-Indians will continue.