The Indian Child Welfare Act

During last week’s Wednesday’s Wild Chronicles post I eluded to legislation that was going to impact the course of Little-Flower’s adoption. This week I will go into detail. For several months it left our ability to adopt her in limbo. Although I appreciate why this law has been made, our circumstance made the statute infuriating.

One of the first things our agency did once Little-Flower’s birth mother contacted them was meeting with the biological father. As soon as the social worker walked in the room and saw him, she knew things were going to get complicated. Little-Flower’s biological father is Native American.

In the United States there is a law that gives first rights of a Native American child to the tribe. A Native American child may not be adopted by a non-Native American couple without the permission of the tribe. The law came about after a high number of Native American children were being removed from their homes and placed with non-Native American thus losing touch with the heritage.

The law requires the written consent of the tribal communities in order for a non-Native American family to adopt the child. For an adoption situation the options that the tribal council can consider is: placing a child within their tribe; placing the child within another Native American Nation’s tribe if no suitable adoptive family can be located within their tribe; or giving permission for the child to be adopted by a non-Native American family.

The law does not require that the Native American parent be a registered member of the nation, only that they are eligible. For each Native American tribe there are different rules. Some require a certain blood quantum such as ¼ of that tribe, others such as the Cherokee have no blood quantum. So you can be 1% Cherokee and be a registered Native American.

Little-Flower’s biological father was eligible for both the Blackfoot and Cherokee nations, but was registered with neither. The Blackfoot have one tribal council and the Cherokee have three. We needed all four tribal councils to sign off before we could consider adopting Little-Flower.

While I understand the law’s intent it floored me that it could apply to our situation. Here we were attempting to arrange an open adoption and if the expectant mother terminated her parental rights one of the tribal nations could swoop in and place the child with a Native American family thus cutting off her contact with the child. It was hard to believe such a law could exist.

The other part that was frustrating was the differing laws about blood quantum requirements. I am part Native American however, I do not have a high enough blood quantum to be a registered member of the nation. This child could be placed with a couple who was less Native American than myself simply because their nation either had no blood quantum requirement or one that is less than the nation of my ancestor. Because each nation is independent there is no way to regulate the fairness of this aspect.

In reading about it and posting questions on an adoption forum I was advised multiple times to walk away from the opportunity. We were advised by the agency that they had never had a child actually be placed on a reservation and they were confident that the adoption would go through unchallenged, but many others had horror stories of fighting against the sweeping implications of the legislation.

In researching further, it appeared that in states with a higher Native American population, the less willing a tribal council was to allow a non-Native American family adopt a Native American child. Where we reside there is not a high population of Native Americans so we were in a better position to have the tribal councils allow for the adoption to go through.

We were grateful that this was discovered prior to Little-Flower’s birth which allowed for us to gingerly proceed with the match, knowing that there was potential for it to fall apart. We had a few months of waiting ahead of us before we would know the outcome, but we would know prior to her birth if we were in the clear.

Thankfully, in the end all four tribal councils signed off. She was free to be adopted by a non-Native American couple. Now, all we needed to do was wait for her arrival!

Next Week: Better Late Than Never – (Little-Flower’s refusal to enter the world!)

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