Why Does My Adoption Lawyer Care if my Child is Indian?

Adoption lawyers, agencies, and judges ask a lot of personal questions. They need original birth certificates and confidential personal information about everyone involved, from the child to the adoptive parents. But what does an adoption lawyer care if your child is Indian?

A History of Culturally Disruptive Adoptions

A person’s cultural heritage is an important part of his or her identity. That’s true whether you are proud to be an American, Black, Asian, German, or any other nationality. It also applies to Native Americans. But this cultural pride was historically undercut by adoptive placements outside of a native child’s tribe or culture.

In 1976, a study by the Association of American Indian Affairs found that as much as 35% of all Indian children were being removed from their families and placed in out-of-home care. Of those foster placements, 85% were not Native American. The children in these placements faced a real risk of being cut off from their cultural heritage.

In response to this trend, in 1978, the federal government passed the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901). Locally, this law is implemented through the Michigan Indian Family Preservation Act (MIFPA) (MCL 712B.1 et seq). These laws were designed to protect the cultural interests of the Native American tribes and particularly their children within the Juvenile Court system. ICWA’s stated purpose is to create a baseline standard for the placement of Indian children in homes that “reflect the unique values of Indian culture.” MIPFA is intended to protect “the best interests of Indian children and promote the stability and security of Indian tribes and families.”

(Note: I understand and sympathize with the fact that the term Indian can be seen as offensive or culturally insensitive. Unfortunately, it is the legal term used in the statutes. For the purposes of this blog, and when addressing these issues in court, the terms Indian and Native American are used interchangeably, giving all due respect to indigenous Americans and their cultures.)

Is My Child an Indian?

ICWA applies to “any unmarried person who is under age 18 and is either (a) a member of an Indian tribe, or (b) … eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. § 1903(4). MIFPA applies any time a child could be a member of a federally recognized Native American tribe, even if that child’s parents never were.

Each tribe determines its own enrollment and membership criteria, but they are generally based on genealogy, and the amount of Native American ancestry a person has. This means that if anyone in the case – biological parents, adoptive parents, or placement agency employees – has reason to believe the child may have Indian ancestry, the court will likely order an investigation to determine whether ICWA or MIFPA apply.

How ICWA and MIFPA Work

The state and federal laws protecting Native American children within the Juvenile Court system make sure that each child’s tribe is informed of that child’s placement and has an opportunity to protect the child’s cultural heritage. If a child is considered an Indian under ICWA and MIFPA, it means that the child’s Tribe has the right to intervene and participate in any custody determinations, including adoptions and the termination of parental rights. The court must take additional steps to make sure that culturally appropriate services were provided, and that preference was given to:

  • Members of the child’s extended family
  • Other members of the Indian child’s tribe
  • Other Indian families

The court must investigate these placements and can only skip over a placement for good reason.

If a child would qualify as an “Indian child” but the court doesn’t apply the state and federal law, a Juvenile court placement can be overturned. That means even when a child’s custodial parent remains in place (such as in a step-parent adoption), the court is still going to determine whether the child has Native American ancestry.

Does ICWA Apply to Other Cultural Minorities?

Native American children are not the only ones often placed in foster and adoptive homes outside of their cultural heritage. Adoptive parents should also be aware of the cultural traditions of African-American and Hispanic children, among others. There are no laws like ICWA for other cultural minorities. When possible, many adoption placement agencies do give preference to minority families seeking to adopt children within their own culture.

However, it can sometimes be difficult to make a cultural match due to a lack of suitable placements. In fact, because of this, “Indian guardians” – members of the child’s tribe who represent his or her cultural interests – often consent to placements outside the tribe. Also, many foster and adoptive parents who do take in children from other ethnic, racial, or cultural backgrounds make it a priority to preserve and teach the child’s tradition and introduce them to role models that look like them.

Native American tribes also hold a unique status among American minorities. Because they are legally sovereign nations, state and federal governments often must address their interests differently than other parts of the American melting pot. It is not that Native American children’s cultural interests are any more or less important than other minorities, but the history of their culture affects the way they are treated in the courts.

So when your adoption lawyer asks you if the child you are adopting is Indian, don’t worry. It doesn’t mean your adoption will be harder, or that the attorney is being racist. It just means that there will be a few extra steps involved in finalizing your child’s forever home.

Lisa J. Schmidt is an adoption attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She assists with step-parent and direct placement adoptions as well as representing biological parents in agency adoption matters. If you are looking to adopt a child, contact Schmidt & Long to schedule a free consultation.