The Indian Child Welfare Act is a federal law designed to strengthen and preserve Indian families and tribes. It applies to all child custody proceedings involving an “Indian child.” While adoption proceedings are typically regulated by the states, the Indian Child Welfare Act is a major exception. The ICWA, as federal law, supercedes state laws that are in conflict with it. Knowing whether and how the ICWA applies to adoption matters can be a complex question involving issues such as:
- whether the child is a member or eligible for membership in an Indian tribe
- whether the tribe is federally recognized
- consent procedures in adoption matters which are different from state law
- a different time period for revoking consents
- a tribal right of intervention in voluntary adoption proceedings
- specific relative and tribal placement preferences
- how a birth mother may request that the preferences not be followed
An agency may be sued in federal court for violations of the ICWA. In Illinois, the Putative Father Registry may have no effect on adoptions of Indian children.
There are over 300 reported case opinions interpreting the ICWA in state adoption proceedings. By far, the most significant violations of the ICWA in adoption cases occur because agencies and attorneys fail to apply the ICWA and its heightened consent requirements. This law is simply too complex for an agency, adoptive parents, or tribes to handle without legal advice.