I have helped families bring children into their lives here in Kansas for many years. As a result, I have encountered almost every type of adoption scenario imaginable. Kansas is proud to be home to many Native American residents, especially members of the Kickapoo, Iowa, Sac and Fox, and Potawatomi tribes. I have helped many families adopt Native American children from these tribes and others. Like all adoptions, these adoptions are joyous events for the new family. But unlike other adoptions, bringing a Native American child into your home presents unique challenges because of the overlay of federal law, specifically the Indian Child Welfare Act or ICWA. ICWA presents unique, heightened requirements for adopting a Native American child. Its stricter standards are a response to centuries of non-indigenous people merely taking Native American children with little regard for the parents, the tribes’ sovereignty, or the children’s culture.
If you are considering bringing a Native American child into your life, you will need the assistance of an experienced adoption attorney to help you navigate the ICWA process. Hiring an experienced Kansas adoption attorney can help you avoid pitfalls that can cause tremendous heartache and headaches later, call McDowell Chartered at (316)-269-0746 to get the advice you need.
ICWA Basics
Enacted in 1978, ICWA was enacted to stop the wholesale theft of children from Native Amerian parents, a practice that had existed in America for hundreds of years. While ICWA is an incredibly complex law, I can summarize the difference it makes to adoption succinctly. In a traditional adoption, the state can terminate the parental rights of any child if the parents are abusive, neglectful, mentally unfit, or have committed crimes that prohibit contact with children. The biological parents’ voices legally are silenced once that termination occurs.
ICWA applies to “Indian children” as defined by federal law. Indian children are defined as either (1) registered members of a federally recognized Indian tribe or (2) children eligible to be a member of a federally recognized Indian tribe and the biological child of a member of the tribe. This means that it takes more than identifying as Native American to fall under ICWA; one of the parents must also be eligible for tribal membership. Each tribe defines eligibility differently.
ICWA presents a much different legal landscape than a traditional Kansas adoption. Under ICWA the state must try to “make active efforts” to rehabilitate and reunite the biological parents with their child before termination. Second, the standard for termination of parental rights are considerably higher under ICWA than under Kansas law and require experts’ testimony that the Native American parents are unfit. Third, ICWA mandates that Native American relatives and families get preference for placement of the child; non-familial Caucasian families are a least favored option. Finally, the child’s tribe or tribes have standing, or a legal right to participate, in the case and to advocate for the child’s best interests regarding placement. The tribe may play an even more active role if it has a tribal court; in those cases, the tribe may seek to the case’s jurisdiction transferred to a tribal court.
What Should I Do If I am Considering an ICWA Adoption in Kansas?
Working with the help of an experienced Kansas adoption attorney can help you successfully navigate the adoption process. ICWA is a necessary law with a noble goal of preserving Native American families and culture. That said, it can make adoption of Native American children a much more complicated process. Speaking with an experienced Kansas adoption attorney is the first step to bringing a child of any race into your home.
Call our caring full-service adoption law firm at (316)-269-0746 to set up an appointment in order to discuss any one of many types of adoption.
