1. Question: What is the voluntary relinquishment process for the parents of an Indian child?
1. Any consent given prior to, or within ten days after, the birth of an Indian child shall not be valid. Therefore, relinquishment cannot take place until the child is at least eleven days old.
2. The relinquishment must be executed in writing and take place in front of a judge of competent jurisdiction and accompanied by the presiding judge's certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parents.
3. The judge must certify that the parents fully understood the English language or that it was interpreted into a language that the parents understood.
Legal Reference: 25 U.S.C. #sect# 1913 (a)
2. Question: What happens if the Indian parents change their minds after the relinquishment papers have been correctly executed?
The Indian parents may change their minds at any time, for any reason and the child must be returned to them until the final decree of adoption has been executed by the judge and filed in the court.
Indian parents may still change their minds and have the child returned to them after the final decree is filed if they are able to prove that the signing of the relinquishment papers was done under some type of fraud or duress.
Legal Reference: 25 U.S.C. #sect# 1913 (c) & (d)
3. Question: Am I required to send notice to the tribe in voluntary relinquishment situations?
Answer: Yes. The intent of the 1978 Act is to give the tribe control over the disposition of their children. The law clearly states the federal Indian Child Welfare Act pertains to "Indian child custody proceedings" and the definitions under the act refer to "adoption proceedings" as one of the proceedings included. The purpose of a voluntary relinquishment is to promulgate an adoption proceeding. The act is very specific about "notice" requirements in adoption proceedings.
Legal Reference: 25 U.S.C. #sect# 1903 (1) (iii) & 25 U.S.C. #sect# 1912 (a)
Oklahoma Indian Child Welfare Act: 10 #sect# 40.4
4. Question: Can the tribe intervene in private adoption matters?
Yes. The law clearly states that the tribe has the right to intervene in all Indian child custody proceedings at any point in the proceeding.
Legal Reference: 25 U.S.C. #sect# 1911 (c)
5. Question: What are the rights of extended family in voluntary relinquishments?
The placement preferences of the Act place family at the top of the list. It is the right of the extended family under the federal Indian Child Welfare Act to be the first consideration for placement. The fact that a relinquishment of parental rights is voluntary does not negate the rights of the first placement preference.
Legal Reference: 25 U.S.C. #sect# 1915 (a)
6. Question: When is an Indian child adoption free from appeal?
If an adoption of an Indian child has been finalized for at least two years, it cannot be overturned.
Legal Reference: 25 U.S.C. #sect# 1913 (d)
1. Question: Who is eligible to adopt an Indian child?
Answer: You will be eligible to adopt a Cherokee child if you are a relative from either side of the family, regardless of Indian heritage, and can provide a safe and stable home for the child. You will also be eligible to adopt a Cherokee child if at least one of the parents can prove tribal affiliation with a federally recognized tribe through a Certificate Degree of Indian Blood card (CDIB) or membership card and both can meet all the certification standards of the Cherokee Nation adoption program or other accredited adoption agency.
2. Question: Can a non-Indian family adopt an Indian child?
Answer: There are only three occasions when a non-Indian family can adopt a Cherokee child.
1. When a non-Indian family is a blood relative to the child.
2. When a child is over the age of 12 and chooses to be adopted by an appropriate non-Indian family.
3. If there was some extraordinary physical or emotional need of the child and there was currently no appropriate Indian family to meet the child's needs the Cherokee Nation could agree to a placement outside the Act in order to expedite placement and provide for the child's needs in a more timely manner.
3. Question: What does the federal law require when deciding an adoptive placement of an Indian child?
Answer: 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 Placements
Repeats the 25 U.S.C. #sect# 1915 reference but adds additional wording by stating that preferences must be given "in the order listed... ."
4. Question: What is "good cause" to make placement outside the adoption preference placement specifications of the law?
Answer: For Cherokee Nation "good cause" could only be established if, first, no suitable relatives were available for placement and the "due diligence" efforts of the relative search were accepted into the court record. Second, placement with a Cherokee adoptive family would have to be ruled out by the same standard of "due diligence" and accepted into the court record. It is in this area that the "good cause" standard would fail as Cherokee Nation has an abundance of approved adoptive homes that are made available across the United States to meet the placement needs of our Cherokee children. It is our belief that "good cause" cannot be established for adoptive placements of a Cherokee child outside the preference placements of the Act.
Published Department of Interior Bureau of Indian Affairs Guidelines:
BIA Guidelines allow only three reasons for a "good cause" finding to modify placement preferences. They read as follows:
1. The request of the biological parents or child when the child is of sufficient age;
2. The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness;
3. The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.
5. Question: Who has control of placement decisions?
Answer: 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.
6. Question: What are the consequences of not following the federal Indian Child Welfare Act on placement decisions?
Answer: 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.