There are only three occasions when a non-Indian family can adopt a Cherokee child.
The federal law requires that certain placement preferences be used in the placement of an Indian child for adoption. The law gives first priority for adoptive placements to a member of the child's extended family. If after a diligent family search, which must be documented for the court, a relative is not available or suitable the placing agent or court must proceed to the second preference placement that is a placement with the Indian child's tribe. Cherokee Nation has a large adoption program which assists placing agencies and courts in meeting this second preference placement. Because of this placement availability it makes it almost impossible for courts to circumvent federal law with a "good cause" finding. The Act also allows for a third placement with members of another Indian tribe that can also be used if the other two preferences have been exhausted. Cherokee Nation also certifies Indian adoptive homes from other tribes.
Legal Reference: 25 U.S.C. #sect# 1915 Placement of Indian children (a)Published Department of Interior Bureau of Indian Affairs Guidelines:F.1. Adoptive PlacementsRepeats the 25 U.S.C. #sect# 1915 reference but adds additional wording by stating that preferences must be given "in the order listed... ."
Ultimately the judge has the final control of placement decisions, however, he is bound by his judicial oath to follow the laws that govern the placement of Indian children. At this time the federal Indian Child Welfare Act is that law that covers these issues and supercedes any state law to the contrary. However, states may adopt their own state Indian Child Welfare Acts if the state law strengthens or expands the federal law and does not take away or modify the original intent of the federal mandates. In such case the higher standard of protection applies.
Legal Reference: 25 U.S.C. #sect# 1921 Higher State or federal standard applicable to protect rights of parent or Indian custodial of Indian child.
To Cherokee Nation the most critical consequence is a disrupted placement. If a state court does not follow federal law and allows an illegal placement to continue for an extended period of time the correction of such an error will cause placement change. Depending on the length of time involved before the correction is made, the disruption could have long-term effects on the child. Some courts have made such placement errors and depend on the length of time necessary for appeal to cement the placement and declare "bonding" as a reason for "good cause" not to move the child to an Indian placement. This is a flagrant attempt to circumvent the law at the child's expense. The law is clear on preference placements and the court's responsibility to follow them. The best defense that the tribe has in such issues is a legal appeal. Appeals are never the first option of Cherokee Nation but we are ready to do so when such placement violations are blatant and Cherokee Nation has offered to provide an alternative placement that meets the needs of the child.
Legal Reference: 25 U.S.C. #sect# 1914 Petition of court of competent jurisdiction to invalidate action upon showing of certain violations
Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of section 1911, 1912, and 1913 of this title.
