Lexi's Case and ICWA

We are closely following the California case (Lexi's Case) that has been receiving international attention and support reform to ICWA that may result in the public's knowledge of how ICWA is being used. Unfortunately, Lexi is not alone. These types of situations have been happening for years - probably most well known is the Baby Veronica case. There are many more - many more families who were scared to go to the media as their families and lives were devastated. These public cases are not anomalies.

This section of our website includes links to comments and press releases that AAAA has issued related ICWA, most recently our response to the Bureau of Indian Affairs (BIA) ICWA guidelines that explicitly request judges to put the best interest of children subordinate to tribal rights.

Click here to see:  Academy Responds to New Indian Child Welfare Guidelines

The Indian Child Welfare Act ("ICWA")passed in 1978. The intent of Congress was to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." When a Native American child who is a member of or eligible for membership in a federally recognized tribe is involved in state child custody proceedings, including adoptions, there are federal requirements under the ICWA that must be applied or addressed. Thus, whenever a proposed adoption involves a child who is Native American, as defined by the ICWA, state and federal laws will govern the proceedings. 

A person may define his or her identity as Native American or Indian, but in order for the ICWA to apply, the involved child must be an Indian child as defined by the ICWA. The ICWA defines an "Indian child" as”any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.
Under federal law, individual tribes have the right to determine eligibility, membership, or both. However, in order for the ICWA to apply, the child must be a member of or eligible for membership in a federally recognized tribe.

While the ICWA requires notice to Tribes for involuntary court proceedings, notice to a tribe is not required in a voluntary adoption proceeding. While the ICWA, 25 U.S.C. 1913 is silent as to notice in voluntary proceedings, court decisions and the Bureau of Indian Affair Guidelines specifically state notice is not required in voluntary adoption proceedings. 

There are nine states that have enacted state laws which require notice to Indian Tribes be given in both voluntary and involuntary ICWA proceedings. It is important to confirm with an attorney if the state where either the birth parent or adoptive parent(s) reside has a state law referred to as a “mini-ICWA”. In a proceeding involving ICWA, the parents’ consent to place a child for adoption is invalid if the ICWA guidelines are not strictly adhered to (regardless of whether notice is provided). The consent cannot be taken prior to, or within, 10 days after the birth of the Native American child and it must be signed and recorded before a judge and accompanied by the presiding judge's certificate that the terms and consequences of the consent were fully explained in detail and understood by the parent or Native American custodian. The certificate must be in English or a language the parent understands. 

The ICWA has specific adoption placement preferences which, absent good cause to the contrary must be followed in a some voluntary ICWA cases. The ICWA placement preferences are:
1. placement with extended family
2. members of the child's family
3. other Native American families.

The Supreme Court of the United States, in its 2013 decision, Adoptive Couple v. Baby Girl, held that the ICWA adoption placement preferences are inapplicable if there is only one couple or individual seeking to adopt the child. The U.S. Supreme Court stated that where there is not an alternative or competing petition to adopt the child the ICWA placement preferences are inapplicable to the adoption proceeding. However, in the event there is an alternative petition to adopt the child, then in said circumstances where the adoptive placement is neither Native American nor a relative of the child, a Court must determine if “good cause” exists to deviate from the ICWA adoption placement preferences. 

Case law and the Bureau of Indian Affair Guidelines state the request of the parent may constitute good cause to deviate to allow an adoptive placement selected by a birth parent.

Click ICWA for more about ICWA