ICWA Is a Federal Law That Seeks to Keep Indian Children With Indian Families
Video Transcribed: What are the placement preferences when a case involves a Native-American child? My name is Ryan Cannonie, I am the Tahlequah Attorney for Wirth Law Firm in Tahlequah. and I’ve talked about placement preferences and videos in the past, but it’s never too early to remind us how that works again. Also, I don’t believe any of the past videos have actually addressed the adoption placement preferences.
So, I’m going to do that in this video. So, the first thing I want to talk about is adoptive placement preference. So, when you have a Native-American child and they are being removed from their parents, for any reason, the federal and state Indian Child Welfare Act supply, there’s a federal one, and then Oklahoma has one.
Both of these are designed because like I’ve said in other videos, for a long time, there was a federal and state policy of separating Native- American children from their families.
Then, only giving them to, at the time, white families to basically strip them of everything that made them culturally native, to try to assimilate. It was the Assimilation Doctrine. This led to a lot of issues. Number one is the loss of culture, language, and the decimation of a lot of tribes. So, the Fed stepped in, made the Indian Child Welfare Act. Most states followed suit and have their own one that mirrors the Feds, and so that’s where we are now.
So, when a child is taken from an Indian home and we’re talking about adoption in this instance, let’s say someone wants to adopt a Native-American child. You are going to have to have a tribal expert come in, or an expert witness to testify that removal of the child from the home is in their best interest, that’s been done to safeguard the child against physical and or emotional damage.
Those are some of the magic words. I butchered that phrase, but you don’t need to know the exact phrase for this video. But that’s something you have to have testimony at the hearing, especially if there’s any type of adoption without consent, meaning that the parents are, their rights are being terminated in this situation. Now, when you are looking at placing a child in an adoptive placement, you still have to, there are ICWA guidelines for that.
Namely, there are preferences, meaning that there’s a selection process for who should get a priority on being able to adopt a child. You probably heard something about this years ago, in a case it was called Baby Veronica. There was a whole lot of media attention about it when they started talking about ICWA and placement preferences.
So, if we’re talking about adoptive placement, your first placement preference is going to be with that child’s extended family. Extended family is number one. It’s number one on just about all the placement preference lists. Usually, it’s number one, even on non-native children. You want to try to keep the child within some semblance of that same family. The second is going to be with a member of the child’s own tribe.
So any, if we’re talking about a Cherokee child, we’re talking about a Cherokee Nation tribal family or a Cherokee Nation family who wants to adopt. Third, is going to be with a member of any certified tribe, and so that opens it up from there.
Now, those are your tiers of adoptive placements. Now, as I said before, to move from with their parents, to with extended family, to with a member of their own tribe, to with a member of another tribe. Then you have to have this thing called Good Cause. I’ll do another video. I’ve talked about it before, but I’ll do another video explaining that more too. It’s basically, you have to have a written decision in court, and there’s a couple of ways that have been declared Good Cause, in case of law all in the past.
Now, let’s say we’re not talking about adoptive, but we’re talking about any foster care placement. Now, foster care is extremely broad. ICWA defines it, basically, if we’re not talking adoption, we’re talking foster care. So, when you start looking at that, you need to have once again, an extended member of the child’s extended family. There we go. Your second is going to be a foster home that is certified by the tribe, by Native America, by that child’s tribe. Then the third is going to be a foster home that is certified by a non-tribal licensing authority.
This would be DHS or possibly a private place that certified the home. The third is going to be an Indian, and an institution that is by a tribe or by a tribal authority institution. I’ve never actually seen it get to that because when you hit that third tier, you always had DHS. Especially, in most of these situations, you’re going to have a home that’s either certified by the tribe or certified by DHS. So, you’re not, I’ve never seen a case where it gets to that fourth tier.
Not that it won’t, but I just haven’t seen that in almost eight years now of practice. So, why do these matter? Well, if you are not in those placement preferences, then you have to go to court and fight to show that there is a good cause, there’s a good reason for this child to be placed with you.
So, you need an attorney that understands the Indian Child Welfare Act, but also what Good Cause means, what can meet that burden of Good Cause. People, a lot of times say, well, just the removal of the child from a family they’ve been with. Psychological, Good Cause talks about the psychological are not always going to get you there.
That said, there are some case law decisions out there that discuss bonding and things like that. But, just to say, it’s traumatic on a child, is not going to be enough, just saying it. You’re going to have to thread the needle through some of those decisions out there. But, that doesn’t mean that all hope is lost. There’s a lot of ways you can do Good Cause, and tune in for my other videos when they post, to find more out about that.