Indian Child Welfare

201 South Muskogee Ave. Tahlequah, OK 74464

Indian Child Welfare Act

Frequently Asked Questions

Why does the federal law exist?

Cherokee Nation cannot explain this any better than Congress did in 1978 as referenced below in #sect# 1901 Congressional findings.

Legal Reference: 25 U.S.C. #sect# 1901 Congressional findings
Recognizing the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people, the Congress finds:

  1. That clause 3, section 8, article I of the United States Constitution provides that "The Congress shall have Power To regulate Commerce with Indian tribes" and, through this and other constitutional authority, Congress has plenary power over Indian affairs;
  2. That Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources;
  3. That there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members or are eligible for membership in an Indian tribe;
  4. That 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 an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
  5. That the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.

What does it mean when a tribe "intervenes" in court proceeding involving the custody of an Indian child?

When a tribe intervenes in a court matter it means that the tribe is now a party to the proceeding. It also places the court and other interested parties on notice that the proceeding involves a verified member of an Indian tribe and that the provisions of the federal Indian Child Welfare Act will apply to this proceeding. Federal law states that a tribe can intervene at any time during the proceeding so prompt notification to the tribe helps to ensure that the court is aware from the beginning of the proceeding about the application of the laws that apply to Indian children.

Legal Reference: 25 U.S.C. #sect# 1911 Indian tribe jurisdiction over Indian child custody proceedings
(c) In any State court proceeding for the foster care placement of, or termination of parental right to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding.

What if state law conflicts with federal law?

Federal law always supersedes state law. However, states that have adopted their own state Indian Child Welfare Acts may do so if the state law strengthens or expands the federal law but does not take away or modify the original intent of the federal mandates. In such case, the higher standard of protection applies.

Legal Reference: 25 U.S.C. #sect# 1921 Higher State or federal standard applicable to protect rights of parent or Indian custodial of Indian child
In any case where State or federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the right provided under this subchapter, the State or Federal court shall apply the State or Federal standard.

Who is eligible to adopt an Indian child?

You will be eligible to adopt a Cherokee child if you are a relative from either side of the family, regardless of Indian heritage, and can provide a safe and stable home for the child. You will also be eligible to adopt a Cherokee child if at least one of the parents can prove tribal affiliation with a federally recognized tribe through a Certificate Degree of Indian Blood card (CDIB) or membership card and both can meet all the certification standards of the Cherokee Nation adoption program or other accredited adoption agency.

Can a non-Indian family adopt an Indian child?

There are only three occasions when a non-Indian family can adopt a Cherokee child.

  1. When a non-Indian family is a blood relative to the child.
  2. When a child is over the age of 12 and chooses to be adopted by an appropriate non-Indian family.
  3. If there was some extraordinary physical or emotional need of the child and there was currently no appropriate Indian family to meet the child's needs the Cherokee Nation could agree to placement outside the Act in order to expedite placement and provide for the child's needs in a more timely manner.

What does the federal law require when deciding an adoptive placement of an Indian child?

The federal law requires that certain placement preferences be used in the placement of an Indian child for adoption. The law gives first priority for adoptive placements to a member of the child's extended family. If after a diligent family search, which must be documented for the court, a relative is not available or suitable the placing agent or court must proceed to the second preference placement that is a placement with the Indian child's tribe. Cherokee Nation has a large adoption program which assists placing agencies and courts in meeting this second preference placement. Because of this placement availability it makes it almost impossible for courts to circumvent federal law with a "good cause" finding. The Act also allows for a third placement with members of another Indian tribe that can also be used if the other two preferences have been exhausted. Cherokee Nation also certifies Indian adoptive homes from other tribes.

Legal Reference: 25 U.S.C. #sect# 1915 Placement of Indian children (a)
Published Department of Interior Bureau of Indian Affairs Guidelines:
F.1. Adoptive Placements
Repeats the 25 U.S.C. #sect# 1915 reference but adds additional wording by stating that preferences must be given "in the order listed..."

What is "good cause" to make a placement outside the adoption preference placement specifications of the law?

For Cherokee Nation "good cause" could only be established if, first, no suitable relatives were available for placement and the "due diligence" efforts of the relative search were accepted into the court record. Second, placement with a Cherokee adoptive family would have to be ruled out by the same standard of "due diligence" and accepted into the court record. It is in this area that the "good cause" standard would fail as Cherokee Nation has an abundance of approved adoptive homes that are made available across the United States to meet the placement needs of our Cherokee children. It is our belief that "good cause" cannot be established for adoptive placements of a Cherokee child outside the preference placements of the Act.
Published Department of Interior Bureau of Indian Affairs Guidelines:
BIA Guidelines allow only three reasons for a "good cause" finding to modify placement preferences. They read as follows:

  1. The request of the biological parents or child when the child is of sufficient age;
  2. The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness;
  3. The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.