ICWA: A Guide to the Indian Child Welfare Act

By Alexis Watson

Navigating the legal system for your adoption can be complex. Knowing your rights as the birth parent is crucial in navigating this process. However, navigating the legal system for families impacted by ICWA can seem never-ending. The Indian Child Welfare Act or commonly referred to as the ICWA. The ICWA protects the interests of Indian Children by placing them in homes that reflect the values of Indian Culture. (“Indian Child Welfare Act (ICWA)”)

Here at Adoption Choices of Colorado, our experts are here to guide you through the adoption process. We also work closely with our legal team to ensure that birth parents know their rights. 

What is the Indian Child Welfare Act (ICWA)? 

The ICWA, Indian Child Welfare Act, is a response to the crisis that affected American Indian and Alaska Native Children. As ‘Indian child’ is referenced a lot in this resource, it’s important for us to clarify the term. An Indian child is a member of a federally recognized Indian tribe (“Indian Child Welfare Act (ICWA)”).

It was reported that large numbers of Native Children were being separated from their families and communities by adoption agencies. These Native children were removed from their families and homes and placed with families and institutions void of tribal connections. According to NICWA, 25% – 35% of Native children were being removed. 85% of those removed were placed outside of their families and communities despite relatives expressing interest in raising the child (“About ICWA » NICWA”). Native children being placed outside of their families and culture caused a devastating impact. ICWA was created to protect the child’s best interest and to support the growth and security of Indian tribes. 

ICWA’s Mission For Children Placed In State Child Care

When considering adoption, the ICWA has set federal requirements for the state involving an Indian child to follow. More specifically, providing protection for Indian children who are a part of or are membership-eligible for federally recognized tribes. Because of the ICWA’s impact on child welfare, they’ve set the standard of care for child welfare and adoptions. Adoption agencies across the world have used the ICWA’s practices of keeping children in relative care whenever safe and possible. 

When giving up your baby for adoption, the preference is for placement with extended family first. If the child is of Native origin then the next preference is for a place with members of the tribe. Then to other members of another tribe (Totenberg and Gupta). Even with these federal requirements in place, Native children are four times more likely to be removed from their homes (“About ICWA » NICWA”).

ICWA’s Adoption: Child Protective Services

Before giving up a baby for adoption, the tribe must complete a criminal background check. They must also complete a Tribal and state abuse and neglect registry. This is a part of the Final Guidance for the Native American Children’s Safety Act (NACSA). Our experts at Adoption Choices of Colorado are able to provide legal assistance throughout this process. 

ICWA Notices are only required if your child is placed in involuntary placement. If you’re not a member of a tribe and willingly putting your child up for adoption then an ICWA isn’t required. However, if ICWA does apply to you then it’s important that you know your rights. 

ICWA: What Are My Legal Rights?

ICWA only applies to child custody proceedings involving an Indian child being involuntarily removed from the home. If this applies to you, then it’s critical that you are made aware of your rights. The court must notify you of your rights:

  • You have a right to an attorney. If you are unable to afford an attorney then you have the right to have a court-appointed attorney. 
  • You have the right to request that your case be transferred to a Tribal court. Tribal courts are based on the tribe’s constitution or way of law. Tribal courts operate independently from the US legal system. 
  • If you don’t want your case heard by a tribal court, you have the right to deny the request. 
  • When you receive our ICWA Notice, you have the right to request additional time to prepare for your case. You can receive up to a maximum of 20 additional days to prepare. 
  • If you have not been made aware of your case, you have the right to intervene. 

As the legal process can be tricky, it’s important that you know what your rights are. Knowing your rights makes you better informed about the process and more confident in making decisions.

For more information on this, please contact your legal advisor or adoption specialist.

Additional Adoption Resources

Adoption in Colorado Springs or more widely can be an emotional experience. These emotions are impacted more by families affected by IWCA. Adoption Choices of Colorado is an adoption agency helping mothers navigate the decision for their unplanned pregnancy. We offered adoption resources such as financial assistance if eligible. We also offer post-placement support, emotional support counseling, and legal support. If you are in need of adoption assistance, please give us a call today.  

References

  • “About ICWA » NICWA.” NICWA, https://www.nicwa.org/about-icwa/. Accessed 3 February 2024.
  • “Indian Child Welfare Act (ICWA).” Indian Affairs, https://www.bia.gov/bia/ois/dhs/icwa. Accessed 3 February 2024.
  • Totenberg, Nina, and Meghanlata Gupta. “The Supreme Court leaves Indian Child Welfare Act intact.” NPR, 15 June 2023, https://www.npr.org/2023/06/15/1182121455/indian-child-welfare-act-supreme-court-decision. Accessed 3 February 2024.

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