Indian Child Welfare Act and How It Relates to Foster Care and Adoptions
If you’re considering fostering a child or starting an adoption that involves a child of Native American descent, it’s important to familiarize yourself with the Indian Child Welfare Act (ICWA) and how differently these situations are handled.
What is the Indian Child Welfare Act (ICWA)
The ICWA was enacted in 1978 to establish minimum federal jurisdictional, procedural, and substantive standards that are designed to both protect the rights of an Indian child to live with an Indian family and to stabilize and foster continued tribal existence. ICWA provides guidance to each state on how they should handle child abuse and neglect, as well as adoption cases that involve Native American children.
The need for the ICWA was a product of federal government inaction during the 1950’s and 1960’s. This inaction didn’t protect Native American children from ill-advised child welfare practices by various state agencies that resulted in the unnecessary removal of Native American children from their tribes and families.
According to the National Indian Law Library, statistics show that Native American children who are raised in non-Indian settings become “spiritual and cultural orphans.” They don’t completely fit into whatever culture they are being raised in, and long for the tribal culture and family of which they were denied as children. The tribes believe that children raised in non-Native American homes may experience a variety of problems, including alcoholism, drug addiction, identity problems, criminal tendencies, and even thoughts of suicide.
How the ICWA Works
Social workers and Child Protective Services have to follow rigorous guidelines when considering the removal of children who fall under the ICWA protections. All children who have Native American or Alaskan Eskimo, or Aleut, heritage of a federally recognized tribe fall under the ICWA. There are no federally recognized tribal reservations in Virginia, and CPS workers can remove a child if they belong to a tribe outside of Virginia, don’t live on a recognized reservation, and are deemed to be in imminent danger.
ICWA guidelines apply to four types of child custody proceedings, which include:
- Foster care placements
- Termination of certain parental rights
- Pre-adoption placements
- Adoption placements
The idea behind the ICWA is that when the child is placed in foster care, the agency or party should place the child with one of the following:
- Member of the child’s extended family (which may include non-Indian relatives)
- A foster home approved or licensed by the child’s tribe
- An Indian foster home which is approved or licensed by a non-Indian authority or agency
- Institution for children which is approved by an Indian tribe
Indian tribal courts have exclusive jurisdiction over Indian children who live on federally recognized Indian reservations.
How the ICWA Relates to Foster Care and Adoption
If you’re a foster parent or are considering adoption of a child that might be of Native American descent, it’s critical you retain a Virginia adoption lawyer who will do the due diligence to ensure all guidelines of the ICWA are adhered to, and help determine whether the adoption can legally happen in the first place. Contact Whitbeck Cisneros McElroy PC to schedule a consultation so our Leesburg adoption attorneys can help you navigate this extremely complex area of family law.