What is ICWA and What are the Legal Requirements?

If there’s a possibility that you will adopt a baby of Native American descent, it’s important to be familiar with the ins and outs of the Indian Child Welfare Act, or ICWA.

ICWA was enacted in 1978 in response to the number of Native American children who were being removed from their homes and placed with non-Native adoptive and foster families. This removal threatened the cultural heritage of these children, and Native tribes needed a Native American adoption law that would protect these children and their cultural knowledge.  ICWA was passed to preserve Native American culture by giving Native American tribes legal authority in the adoption of Native children.

The ICWA Process

So, how does the ICWA law work?

If you are matched with a prospective birth parent who is a member of a federally recognized Native American tribe and whose child will have eligibility for membership in that tribe, ICWA requirements will apply. Likewise, if you choose to adopt a child from foster care who is a registered member of a tribe, you will also need to complete the ICWA process. Being a member of a tribe (or being eligible for membership) is what determines ICWA requirements, not just having Native American heritage.

ICWA requires that states make an “active effort” to reunify Native American families who have entered the welfare system and prevent the removal of Native American children from their native household. Usually, this means tribe leaders will prioritize placing a child with a member of their biological family or a member of their tribe to preserve their cultural heritage.

However, know that just because a child’s situation requires ICWA processes doesn’t mean that a non-Native adoption is impossible. Many tribes will allow a child to be adopted by a non-Native family as long as their cultural heritage is maintained. Don’t let ICWA law deter you from wanting to adopt a child of Native American descent.

Preserving Your Child’s Culture

But if you’re not of Native American descent yourself, how do you help preserve your child’s culture? While ICWA adoptions can seem legally complicated at times, they are equally helpful in establishing contact between non-Native adoptive families and tribal leaders. This way, you can learn as much as you can about your child’s heritage and properly incorporate it into their lives as they grow up.

We encourage all who complete an ICWA adoption to maintain a relationship with their child’s tribe even after the legal process is complete. This way, you can keep your child connected to their heritage and help them get answers to any questions they have. Staying connected to their tribe allows adopted Native American children to interact with tribal role models and make their cultural heritage an important part of their identity.

Because of the possible legal complexities of this kind of adoption, you will need to work with an experienced lawyer to make sure you comply with all of the ICWA requirements and other state laws to bring your child home with you safely.

The lawyers at Brown Pruitt can help you through your Native American adoption and any subsequent legal processes. To learn more about our available services, please contact us today.

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