Are You Pregnant and Thinking About Adoption?

Children and birth parents with American Indian and Alaska Native heritage may be eligible for the special protections afforded them under the Indian Child Welfare Act. These protections help Native children grow up connected to their culture and have the rights associated with being a member of their tribal nation. They also help birth parents make informed decisions about placing their child for adoption.

• Indian Child Welfare Act protections apply in adoptions where the child is a member of a federally recognized tribe or eligible for membership and one of the parents is a member of a federally recognized tribe. This includes private, voluntary adoptions where the parent(s) relinquishes their rights to their child voluntarily and consenting to the child being placed for adoption. Criteria, process, and timeline for determining membership may differ by tribal nation. A child or parent may apply for and become enrolled as a member or citizen of a federally recognized tribe within a relatively short amount of time in some cases, so consider this as you are thinking about the status of your or your child’s tribal membership and how it could change in the next few months while you are in the adoption process. Contact the tribal enrollment office of the tribal nation where your and/or your child’s tribal heritage originates to learn more about their criteria and process.

• Under the Indian Child Welfare Act, a parent’s consent to have their parental rights terminated (legal action required before an adoption can occur) and the adoption of their child is not valid if it is provided earlier than 11 days following the birth of the child. This recognizes that early consents (before the birth of the child) often do not allow birth parents appropriate time to process this life-changing decision. Consent must be executed in writing and recorded before a judge to be valid. The judge must certify that the terms and consequences of the consent to adoption were fully understood by the parents. This provides additional assurances that the parents fully understand the decision they are making and their rights under the Indian Child Welfare Act.
• For information about withdrawing consent to adoption and termination of parental rights, see the question below.
• The Indian Child Welfare Act requires that an American Indian or Alaska Native child being placed for adoption must be placed according to an order of placement preferences. These are: (1) a member of the child’s family (Native or non-Native), (2) a member of the child’s tribe, and (3) another American Indian or Alaska Native family. In some cases, the court may find that “good cause” exists to place the child outside the placement preferences. The placement preferences exist because of the long history of large numbers of American Indian and Alaska Native children removed from their families, placed outside of their extended families and culture, and losing contact with their tribal and cultural identity.

Additional information can be found here. 

What is the difference between an open and closed adoption?

In an open adoption the birth parents, adopted child, and adoptive parents will have the ability to share information with each other. This can mean there is contact through letters, email, or even in-person between the parties. The adoptive parents and birth parents must agree to an open adoption and the adoptive parents have control over how much and what type of contact there is.

In a closed adoption, the identity of the birth parents is unknown to the adoptive parents or adopted child and vice versa. In a closed adoption, the ability to share information and have contact between the adopted child and birth family is not available. With the availability of online ancestry search tools and resources, sometimes adopted children, birth parents, and adoptive parents have found information about each other but it is not readily available like in an open adoption.

What are some other options besides a closed adoption that might work well for myself and my child?

• Consider raising the child yourself. Many states and tribal governments have services available to help birth parents raising young children. These can include a wide range of services including income assistance, employment training, childcare, healthcare, housing, and parent support.

• Talk with your immediate and/or extended family to see what kind of resources or help they may have or know about. An extended family member may be available to provide a home for the child. While it may be uncomfortable to share this information with your family, they may be able to provide you with help or support as you consider your decision.

• Explore the possibility of a guardianship. Guardianship establishes a legal relationship between the guardian family (caregiver) and the child and gives the caregiver family control over day-to-day decisions involving the child without having to terminate the birth parents’ rights. Guardianships, especially guardianships established with adult relatives of the child, may provide an option that doesn’t cut off the extended family relationships of the child. This often occurs in closed adoptions.

• A tribal customary adoption may be an option and is used by many tribal nations. Like guardianships, tribal customary adoption provides a permanent home for the child while not requiring the termination of the birth parents’ rights and cutting off extended family relationships. Tribal customary adoptions are based on the tribe’s culture and traditions about the transfer of a child from one family to another and are conducted by the tribe.

• Open adoption may be a good choice for you and your child. Many adoption professionals recognize that open adoptions (child and birth parents can share information with each other) are an alternative to closed adoptions that can help nurture the child’s identity and familial relationships. While an open adoption provides some benefits over a closed adoption, it still requires the termination of the birth parents’ rights, and there may be more limits than in guardianship or tribal customary adoption to sharing information about the birth or adoptive family. In closed adoptions, the birth family and adoptive parents typically will not have access to identifying information about each other. Consequently, the adoptive child will also not have access to identifying information about their birth family.

Will my child’s tribe be involved in the adoption?

Possibly. The Indian Child Welfare Act provides tribal nations the opportunity to participate as a legal party in adoption cases involving their tribal citizens. If the tribe decides to participate in the adoption proceedings, they may want to contact you to discuss the adoption and provide support if you are interested. Tribal nations can be a helpful resource in ensuring the child is properly enrolled in the tribe, ensuring Indian Child Welfare Act protections are provided, and assisting you in finding additional support. We suggest that you contact the tribal child welfare or socials services program to see what support or resources they may have to offer prior to consenting to an adoption (see ICWA Designated Agent’s listing).

If I choose a closed adoption will my child still be able to be enrolled as a citizen or member of their tribal nation?

Maybe. Many tribes do not allow a child to enroll as a citizen of the tribal nation if the birth parents’ rights were terminated. Tribal citizenship is required for American Indian and Alaska Native children and adults to receive the rights and benefits the tribe offers its citizens. Besides the legal status of the child’s birth parents, tribal nations have other requirements that need to be met to become eligible for enrollment in a tribal nation. To determine how a closed adoption might impact your child’s tribal rights and benefits, contact the tribal enrollment office of the tribe(s) from which your child has American Indian or Alaska Native heritage.

What should I do to ensure that my child and I receive the protections of the Indian Child Welfare Act?

Most adoption processes start with an intake interview. The intake starts after you have made initial contact with an adoption agency, adoption attorney, or adoption facilitator and have indicated your interest in having your child placed for adoption. The intake is usually conducted by someone that is working with an adoption agency, attorney, or facilitator. During the intake,you will be asked personal questions about your living arrangements, education, health, race/ethnicity, birth father’s information, and other background or preferences related to placing your child for adoption. You will also be asked to fill out forms that request personal information from you. If you or the other parent have any American Indian or Alaska Native heritage, it is very important that you share this information before the intake is completed and record it on any forms you are asked to complete, even if you are not directly asked about your tribal heritage. If you decide to continue through the adoption process, make sure you share information about yourand your child’s tribal heritage at each new appointment or on the paperwork you are asked to fill out, even if it is not specifically requested. This will help ensure that all parties in your adoption process have this information and are aware of their responsibility to act accordingly on it.

Can I withdraw my consent to the adoption of my child during the adoption process?

Yes. If your child is eligible for the protections of the Indian Child Welfare Act, a birth parent may revoke their consent to the adoption for any reason prior to the termination of the parent’s rights. Following the withdraw of consent, the child will be immediately returned to the parent(s). If the parent’s consent was obtained through fraud or duress, the birth parent(s) may withdraw their consent up to two years from the date the adoption was finalized in court. While the Indian Child Welfare Act does not define what fraud or duress is, it could involve a birth parent being pressured to exclude information about a birth parent or child’s American Indian and Alaska Native heritage during the adoption process, including in court hearings. In this case, the parents will be asked to provide evidence of the fraud or duress and can petition the court to invalidate the adoption. If the court agrees that the consent was obtained through fraud or duress and invalidates the adoption, the child is to be immediately returned to the parent(s).

Can my child’s tribe conduct the adoption instead of a state court?

Possibly. While not all tribal nations conduct adoptions, many do, and some perform tribal customary adoptions too. As a birth parent, you can petition the state court conducting the adoption to ask that it be transferred to the tribal nation’s court. The tribal nation will decide if they can accept the transfer of jurisdiction and perform the adoption. If you haven’t contacted your tribal nation regarding the adoption case transfer, we suggest that you contact the tribal court or tribal child welfare program to learn more about their process (see ICWA Designated Agent’s listing).

Does the parents’ preferences for adoptive placement or desire for anonymity matter?

Yes. The Indian Child Welfare Act requires the judge to consider the parents’ preference for the adoptive placement of their child and their desire for anonymity. However, the judge must still apply the adoptive placement preferences unless they find that “good cause” exists to deviate from the adoptive placement preferences.