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The Indian Child Welfare Act (ICWA) and Adoption

What is ICWA and How Does it Affect Domestic Adoptions?

When it comes to adoption, there are a lot of legal processes to know. But, whether you’re a prospective birth parent or adoptive parent, you may have never heard about one important legality: the Indian Child Welfare Act, otherwise known as ICWA.

While it’s rarely invoked in our agency placements, it’s still important that you understand exactly what ICWA is and how it might affect your adoption journey. We’ve answered some of the biggest questions you may have about ICWA placements below, but remember that you should always contact our trained specialists for personalized information and guidance.

Please note: None of the information in this article is intended to be or should be taken as legal advice. Please speak with a local adoption attorney for the best legal guidance.

What is ICWA, and Why is It Important in Adoption?

The federal Indian Child Welfare Act of 1978 was passed to protect Native American children’s connection to their Native heritage and culture. Today, it continues to preserve Native American families, tribes and culture by governing the foster and adoptive placements of American Indian children.

ICWA was passed to erect barriers to adoption outside the tribe, thus ensuring that Native American families were kept together when placement within the tribe was in the best interest of the child. The national Indian Child Welfare Act also protects Native American history and culture — preserving it for future generations at a time when tribe numbers and membership were declining dramatically.

Unfortunately, tragedy throughout adoption history made the Indian Child Welfare Act necessary. For decades, Native American and Alaska Native children were removed from their homes and placed into foster care and with non-Native American families. It was part of a larger effort to “Americanize” minority and internationally adopted children, which meant that these Native American children lost their connections to their personal and culture heritage through improper transracial adoptions.

Today, ICWA protects a tribe’s right to govern the placement of a Native American child. For this reason, this Native American adoption law may be utilized in a private domestic infant adoption. In appropriate situations, adoption agencies and adoption attorneys work with the child’s tribe to determine the best steps moving forward.

While ICWA does apply to private adoptions, an ICWA placement is actually fairly rare for a few reasons. You can learn about them below.

Who Qualifies for ICWA? How Will It Impact an Adoption Placement?

Not just anyone who claims to have Native American heritage will be subject to ICWA requirements. A child must meet a strict set of qualifications to be governed by ICWA law.

In order for an adoption to be covered by ICWA, the child must:

  • Be a member of a federally recognized tribe
  • Or be eligible for membership of a federally recognized tribe and have a biological parent who is a tribal member

Note that the eligibility requirements to be a part of a tribe will vary, as every Native American tribe has the right to determine membership requirements.

Many prospective birth mothers have Native American heritage, but there is a difference between having heritage and being a member of a federally recognized tribe. Most children who have Native American heritage are not subject to the federal Indian Child Welfare Act, and the adoption can move forward without ICWA compliance.

However, in the case that a child meets ICWA requirements, an experienced adoption attorney will guide the next steps of the process. Because the procedure of ICWA varies by situation, please reach out to a local adoption attorney to learn more.

Our Agency’s Commitment to ICWA Guidelines

Here at American Adoptions, we are committed to providing safe, ethical and legal adoptions. That means following all private domestic adoption laws — including ICWA.

About 5 percent of adoptions at American Adoptions involve a child with Native American heritage. However, not all of those children will be eligible for tribal membership. Our trained specialists work closely with prospective birth mothers to help identify any eligibility they or their child may have in a federally recognized tribe, including whether they are receiving tribal benefits or currently live on tribal land.

American Adoptions is committed to following ICWA legal procedures in all of our placements. Our social work staff has received ICWA training from Jay McCarthy, one of the country’s foremost Indian Child Welfare experts. Additionally, we work with qualified and experienced adoption attorneys, many of whom are members of the Academy of Adoption & Assisted Reproduction Attorneys (AAAA) and have experience with the Indian Child Welfare Act.

Every time an adoptive family finds an adoption opportunity with a prospective birth mother, they will be briefed on the financial, legal and prospective birth father situation of the adoption, including any details related to ICWA.

Even if ICWA is not applicable to a prospective birth mother’s adoption plan, she will still know any non-Native family she chooses for her child will be educated about and prepared for the unique challenges of a transracial adoption with a Native American baby. American Adoptions works diligently to inform adoptive parents about the realities of transracial adoption, and we ensure that only those who are committed to the steps required pursue this path.

American Adoptions is always dedicated to providing safe, successful and legal adoption placements. To find out more about ICWA and our agency policies, request free adoption information online here.

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