The Indian Child Welfare Act

Many people are not aware that their adoption could be affected by the Indian Child Welfare Act (ICWA). After all, there are no federally recognized indian tribes in Virginia.  However, there are many such tribes in other states, and persons affected by the act may have travelled to  Virginia.

ICWA was enacted by Congress in 1978 in response to concerns that indian children were being placed in non-indian families, with the result that tribes were loosing their distinct identities. ICWA establishes a federal policy requiring that whenever possible an indican child should remain in an indian community. If a child qualifies as an indian child, he or she may not be placed with a non-indian family unless the approval of the indian tribal court is first obtained. Often, indian tribal courts are extremely reluctant to allow a qualified child to be placed outside their community.

The act defines an indian child as a child who is either a member of a tribe or eligible to be a member of a tribe. Each tribe has its own definition of what is required to be eligible. Sometimes, it requires only a very small percentage of indian ancestry.

In my practice, I have found people to proudly state that they have indian ancestry, without knowing the effect that would have on their adoption. Often, this is nothing more than a family rumor and there is no actual evidence of this ancestry. It is therefore very important that birth parents understand the basic requirements of ICWA and its affect on their adoption plans. It is also very important that they provide acurate information, such as completing the Social and Medical History forms developed by the American Academy of Adoption Attorneys.