Indian Children and Non-Indian Relatives

Two families - one child. The child is an "Indian Child" under the Indian Child Welfare Act. This means the child is a member of a tribe or eligible for membership (with a parent being a registered member). See 25 U.S.C. 1903(4). Specifically, in this story, the child is a member of or eligible for membership in the Choctaw Nation. The first family--the Comstocks--are not Native American and have no tribal connections. However, the Comstocks are relatives of the child; Ms. Comstock is the child's adult cousin. That's important--she is the child's cousin. Meanwhile, the second family--the Porters--are not relatives of the child, but they are Native American. In fact, Ms. Porter is a member of the Choctaw Nation.

The problem is the Comstocks and the Porters both want to adopt the child. The Porters have been fostering the child for sometime and grown attached to him. Both the Comstocks and the Porters file petitions for adoption. Who wins?

The Indian Child Welfare Act or ICWA is a federal law that generally gives Tribes--as sovereign nations--first dibs at placement of Indian Children. The idea is to respect Tribes' ability to perpetuate their culture and raise Indian Children in Indian foster homes and adoptive homes, rather than having Indian Child raised in non-Indian homes.

ICWA provides a hierarchy: If an Indian Child cannot be raised by his own parents, then we first look to extended family members, then to keeping the child within his own tribe, and then to keeping the child within a Native American home even if not with his own tribe. The statute provides, "In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families." "Extended family member" means the Indian child's "grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent." 25 U.S.C. 1903(2).

In the Department of the Interior's Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016), the commentary to section 1915 of ICWA states: “The Act clearly recognizes the role of the child’s extended family in helping to raise children. The extended family should be looked to first when it becomes necessary to remove the child from the custody of his or her parents.” 44 Fed. Reg. 67,584, 67,594. Porter v. Comstock ex rel. Department of Human Services, 2012 OK CIV APP 103, 280 P.3d 1204 (Okla. Civ. App. 2012).

The key, however, is that ICWA does not require that the relative have any Tribal connection. The court in the Porter v. Comstock case pointed out that there is "no requirement that the extended family be members of the child's tribe." Id. (emphasis added). Further, 25 C.F.R. 23.2 and the Bureau of Indian Affairs follow the same definition of "extended family member" with no requirement of Indian status.

So, the Comstocks were allowed to adopt their cousin because ICWA gives priority to extended family members even if they lack Indian status. If there are no relatives who want to adopt the child, then the Tribe will seek to place the child with an Indian family.

Caveat: ICWA allows Tribes to establish their own system of preference. 25 U.C.S. 1915(c). So, in these situations it is important to find out if the Tribe involved has done so.

At the Utah Adoption Law Center, we love to help people with their adoption questions. Feel free to call us for a free telephone consult. We handle various kinds of adoptions.