Native American grandmother with her grandchildren

ICWA & Adopting in Colorado

One of the nicest parts of being a family law attorney is making a positive difference in our clients’ lives. People who work at saving mutli-national corporations 0.3% on their tax bill may never have to deal with a client who is emotional to the point of weeping, but they will also never see the relief in their client’s face when parenting time is finally being enforced. Or, the joy when they’ve officially adopted the child they have been taking care of and loving for years.

Helping a family adopt is one of the most rewarding parts of practicing family law. Admittedly, it is not something that comes up very often compared to other types of cases, but when it does, it is fun. Frequently, adoption proceedings begin when a couple separates, and one parent has most if not all of the parenting time. As the years pass, the minority parent drifts away from the child’s life. The active parent may move on to a new relationship, and that flame, as a step-parent, becomes more active in the child’s life than the absentee parent. Sometimes, step-parents are the only mother/father that the child has ever known. Sometimes, these step-parents want to make it official.

While there are a few different types of adoptions, family lawyers most often see step-parent adoptions. These adoptions are governed by C.R.S. 19-5-203. Step-parents will only be allowed to adopt, if the absent parent gives up parental rights, or if they have been removed by court order. The process for obtaining that consent can be complicated, so it’s important to read the statute carefully to make sure you follow the proper process given your situation. Also, any child over 12, will also have to consent to the adoption.

The Indian Child Welfare Act (ICWA)

The Indian Child Welfare Act (ICWA – pronounced by family law professions as ick-waa) was passed by Congress in 1978 to address serious concerns involving the impact of family law proceedings on Native Americans.

Before ICWA, it was common practice to remove Native American children from their families into foster-care or adoption to non-Indian homes. This practice probably happened for different reasons in different places. Sometimes the removal to non-Indian homes was the result of standard Child Protective Services actions to remove children from dangerous situations, and other times it was likely the result of prejudices against tribal populations. Whatever the intentions, Congress believed that widespread removal of Indian children was endangering indigenous cultures. 

ICWA, therefore, covers all children living on Indian Reservations in matters concerning adoption and foster care placement. ICWA also gives Indian Tribes the ability to decide the same matters for children deemed Indians who don’t live on tribal lands. In legal terms, ICWA grants tribes exclusive jurisdiction of children on reservations and concurrent jurisdiction with state courts over Indian children living off the reservations.

The Indian Child Welfare Act is found at 25 U.S.Code § 1901 et. seq., and codified in Colorado at C.R.S. 19-1-126.

Parenting Jurisdiction

Of course, no discussion of a parenting-related initiative would be complete without delving into jurisdiction – the power of the courts to consider ICWA.

Standard Parenting Jurisdiction (UCCJEA)

Whenever a case comes before a court, the court cannot hear the case unless it has the jurisdiction to do so. In cases involving child custody, the operative law is called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). While the law is complicated and has various exceptions, the basic idea is that when starting a custody case, the court where the child has been living for the past 6 months is the child’s home state and therefore has jurisdiction to hear the case.

For the sake of keeping continuity in the legal system, the state with the case will keep it, as long as a party to the case (usually limited to mother, father, and child) stays in the state, that state will retain jurisdiction. If everyone moves away, the case will be transferred to the next state where the child lives for 6 months.

Parenting jurisdiction is critical in any family law case, as we have discussed in recent blogs on both international jurisdiction under the Hague Convention, as well as even DHS cases require jurisdiction for permanent child custody changes. For a full discussion of parenting jurisdiction, see our UCCJEA article in the Colorado Family Law Guide.

ICWA Jurisdiction

The Indian Child Welfare Act complicates this basic framework because it allows federally registered tribes and their legal systems to become involved in parenting proceedings, if the child is a member, or is eligible for tribal membership. As Elizabeth Warren recently found out, each tribe sets their own criteria for membership, and those criteria may differ from tribe to tribe. If a child is or could be a member of a tribe, that child is known as an “Indian Child” and subject to the requirements of ICWA.

If an Indian child is subject to a step-parent adoption, and the tribal courts get involved, it usually complicates matters. Given that tribal courts are interested in preserving their culture, they will generally favor efforts to keep Indian Children participating in tribal life, as opposed to clearing the way for adoption by non-Indians. 

ICWA & Parenting Jurisdiction

As a practical matter, the cases that create issues typically involve an absentee parent who is Native American, while the adopting parent is not. Cases don’t usually arise under ICWA when the present parent was an off-reservation Indian and ICWA was raised by a non-Indian absent parent to complicate matters. Similarly, certain of ICWA’s provisions will not apply, if the Indian parent has never been involved in the child life. 

ICWA is a very interesting law, and may get more interesting soon. Recently the Supreme Court ruled that essentially the eastern half of Oklahoma is an unorganized Indian Reservation which may well lead to litigation as to if tribes have exclusive jurisdiction as they do in typical reservations. There are also serious challenges to the constitutionality of ICWA coming up through the 5th Circuit, after the Court of Appeals held the act to be constitutional, but the full 16-judge panel is now considering the matter en banc.

If the child you wish to adopt is or could be an enrolled member of a particular tribe, you should contact an attorney licensed to practice law within that tribe’s legal system for advice on how to proceed. And while Graham.Law does not practice ICWA law, you need a firm which knows the Indian Child Welfare Act intricacies.

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