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25 U.S.C.A. § 1915

United States Code Annotated
Title 25.  Indians
Chapter 21. Indian Child Welfare (Refs & Annos)

Subchapter I. Child Custody Proceedings


§ 1915. Placement of Indian children


(a) Adoptive placements;  preferences


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.


(b) Foster care or preadoptive placements;  criteria;  preferences


Any child accepted for foster care or preadoptive placement shall be placed in the least restrictive setting which most approximates a family and in which his special needs, if any, may be met.  The child shall also be placed within reasonable proximity to his or her home, taking into account any special needs of the child.  In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with--


(i) a member of the Indian child's extended family;


(ii) a foster home licensed, approved, or specified by the Indian child's tribe;


(iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority;  or


(iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs.


(c) Tribal resolution for different order of preference;  personal preference considered;  anonymity in application of preferences


In the case of a placement under subsection (a) or (b) of this section, if the Indian child's tribe shall establish a different order of preference by resolution, the agency or court effecting the placement shall follow such order so long as the placement is the least restrictive setting appropriate to the particular needs of the child, as provided in subsection (b) of this section. Where appropriate, the preference of the Indian child or parent shall be considered:  Provided, That where a consenting parent evidences a desire for anonymity, the court or agency shall give weight to such desire in applying the preferences.


(d) Social and cultural standards applicable


The standards to be applied in meeting the preference requirements of this section shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties.


(e) Record of placement;  availability


A record of each such placement, under State law, of an Indian child shall be maintained by the State in which the placement was made, evidencing the efforts to comply with the order of preference specified in this section.  Such record shall be made available at any time upon the request of the Secretary or the Indian child's tribe.


CREDIT(S)


(Pub.L. 95-608, Title I, § 105, Nov. 8, 1978, 92 Stat. 3073.)


HISTORICAL AND STATUTORY NOTES


Revision Notes and Legislative Reports


1978 Acts. House Report No. 95-1386, see 1978 U.S. Code Cong. and Adm. News, p. 7530.


LAW REVIEW COMMENTARIES


Adoption law:  Congratulations!  for now--Current law, the Revised Uniform Adoption Act, and final adoptions.  49 Okla.L.Rev. 323 (1996).


Existing Indian family exception:  An impediment to the trust responsibility to preserve tribal existence and culture as manifested in the Indian Child Welfare Act.  Christine Metteer, 30 Loyola of Los Angeles L.Rev. 647 (1997).


Fighting over Indian children:  The uses and abuses of jurisdictional ambiguity.  Barbara Ann Atwood, 36 UCLA L.Rev. 1051 (1989).


Good cause exception to the Indian Child Welfare Act's placement preferences:  Minnesota Supreme Court sets a difficult (impossible?) standard. 21 WM.Mitchell L.Rev. 1191 (1995).


In re Junious M.:  The California application of the Indian Child Welfare Act.  Note, 8 J.Juv.L. 78 (1984).


Indian Child Welfare Act:  Guiding the determination of good cause to depart from the statutory placement preferences.  70 Wash.L.Rev. 1151 (1995).


Protecting abused children:  A judge's perspective on public law deprived child proceedings and the impact of the Indian Child Welfare Acts.  Edward L. Thompson, 15 Am.Indian L.Rev. 1 (1990).


When judicial flexibility becomes abuse of discretion:  Eliminating the  "good cause" exception in Indian Child Welfare Act adoptive placements.  79 Minn.L.Rev. 1167 (1995).


LIBRARY REFERENCES


American Digest System


Indians 6(2), 32(11).


Key Number System Topic No. 209.


RESEARCH REFERENCES


ALR Library


89 ALR 5th 195, Construction and Application of Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. §§ 1901 et seq.) Upon Child Custody Determinations.


Encyclopedias


2 Am. Jur. 2d Adoption § 145, Race; Cultural Background.


NOTES OF DECISIONS


Adoptive placement 6

Anonymity of parent 9

Deviation from preferences 7

Foster care 8

Intervention 4

Jurisdiction of state court 2

Jurisdiction of tribal court 1

Primary cultural heritage 5

Private right of action 3

Review 10

  

1. Jurisdiction of tribal court


Tribe waived any interest it may have had in dependency proceedings affecting Native American children by exercising its right to transfer of jurisdiction and then declining jurisdiction when it learned that transfer of jurisdiction would entail responsibility for foster care payments.  In re Jacqueline L., Cal.App. 4 Dist.1995, 39 Cal.Rptr.2d 178, 33 Cal.App.4th 325, review denied and ordered not to be officially published, certiorari denied 116 S.Ct. 386, 516 U.S. 946, 133 L.Ed.2d 308.


On petition by manager of foster home for letters of guardianship of Indian children, based on health problems of parents which were allegedly adversely affecting welfare of the children, the proper forum for relief was the tribal court.  Matter of Guardianship of D. L. L., S.D.1980, 291 N.W.2d 278. Indians  6.6(2)


2. Jurisdiction of state court


State trial court's order extending state custody of child for two years did not conflict with "status quo" injunction in federal suit by child's paternal aunt and uncle seeking to adopt child over mother's objection;  unless trial court found basis for continuing custody in state, state law and Indian Child Welfare Act would have compelled it to order child returned to her mother, and thus order extending state custody in effect maintained status quo.  Matter of A.S., Alaska 1987, 740 P.2d 432.  Injunction  223


Hearing required to be held in superior court prior to entering a final decree of adoption would be a "subsequent proceeding in the same matter," following adoptive placement of natural grandparents' grandchildren, which would render this chapter applicable and give superior court jurisdiction over claim by natural grandparents that placement of Eskimo children in adoptive home by Department of Health and Social Services deprived them of right under this chapter to preference in the adoptive placement.  E. A. v. State, Alaska 1981, 623 P.2d 1210.  Adoption  10


3. Private right of action


No private cause of action exists for alleged violation of Indian Child Welfare Act (ICWA) preferences for pre-adoption and adoption placement of Native American child.  Doe v. Mann, N.D.Cal.2003, 285 F.Supp.2d 1229.  Action  3


No private cause of action exists for alleged violation of Indian Child Welfare Act (ICWA) placement preferences for adoptive placement of Indian child. Navajo Nation v. Superior Court of State of Wash. for Yakima County, E.D.Wash.1999, 47 F.Supp.2d 1233, affirmed 331 F.3d 1041.  Indians  6.10;  Indians  27(1)


4. Intervention


Trial court's decision setting aside placement preference system under this section was fatally flawed, where trial court had denied Indian tribe's motion to intervene in adoption proceeding involving one of its child members. Matter of J.R.S., Alaska 1984, 690 P.2d 10.


5. Primary cultural heritage


In adopting this chapter, it was not intent of Congress to dictate that illegitimate child who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over express objections of non-Indian mother.  Matter of Adoption of Baby Boy L., Kan.1982, 643 P.2d 168, 231 Kan. 199.  Indians  6.3(2);  Indians  6.10


6. Adoptive placement


Juvenile court was required to select adoption as permanent plan for Native American children who could not be returned to their parents, whose prospective adoptive parents were already doing much to acquaint the children with culture of tribes to which their natural parents belonged, and whose prospective adoptive mother was also Native American, even though guardianship would have increased opportunities for tribal acculturation;  marginal increase in opportunity for tribal acculturation did not outweigh children's interest in having a permanent home.  In re Jacqueline L., Cal.App. 4 Dist.1995, 39 Cal.Rptr.2d 178, 33 Cal.App.4th 325, review denied and ordered not to be officially published, certiorari denied 116 S.Ct. 386, 516 U.S. 946, 133 L.Ed.2d 308.


In employing placement preferences of ICWA, Indian tribe's interest in voluntary adoption of minor who was only part Indian and living off the reservation was not as great as interest of parents.  In re Baby Girl A., Cal.App. 4 Dist.1991, 282 Cal.Rptr. 105, 230 Cal.App.3d 1611, review denied. Indians  6.10


Adoptive placement in state court of Indian child with non-Indian parents did not violate placement provisions of Indian Child Welfare Act which provided that tribal placement preference must be followed;  statutory deference to be accorded tribe's order of preference applied only in absence of good cause to contrary, and given fact that evidence clearly demonstrated good cause, adoptive placement preferences were not binding.  Matter of Adoption of T.R.M., Ind.1988, 525 N.E.2d 298, rehearing denied, certiorari denied 109 S.Ct. 2072, 490 U.S. 1069, 104 L.Ed.2d 636.  Indians  6.10


7. Deviation from preferences


Invalidation of an Indian parental rights termination may not be accomplished by showing a violation of placement preferences set forth in section of Indian Child Welfare Act.  B.R.T. v. Executive Director of Social Service Bd. North Dakota, N.D.1986, 391 N.W.2d 594.  Indians  6.6(1)


Good cause existed to avoid placement preferences of Indian Child Welfare Act  (ICWA) following termination of father's parental rights, where mother preferred to place child with prospective adoptive parents, child would suffer psychological and emotional trauma if he were removed from adoptive parents' custody, it was likely that child would suffer emotional damage if he had contact with biological father while living with extended family on the reservation, it was likely that such conduct would occur, child's paternal aunt, with whom tribe sought to place the child, was equivocal as to her intent to adopt the child, and prospective adoptive parents unequivocally desired to adopt the child and provide permanent home.  Matter of Baby Boy Doe, Idaho 1995, 902 P.2d 477, 127 Idaho 452.  Indians  6.6(1)


Good cause existed to deviate from Indian Child Welfare Act preference that Indian children be adopted by Indians, and to support adoption by non-Indians; child's natural mother wished to have non-Indians adopt child;  there was bonding between non-Indian and child;  there was need for permanent placement which would not have been satisfied if non-Indian couple had been rejected and natural mother had withdrawn her conditional relinquishment of custody in favor of them, and proposed adoption would be open, with natural mother having visitation rights.  Matter of Adoption of F.H., Alaska 1993, 851 P.2d 1361.  Indians  6.10


With regard to section of the Indian Child Welfare Act requiring court either to choose preferential adoptive placement of an Indian child or to find "good cause" why that should not be done, "good cause" is a matter of discretion to be exercised in light of many factors including but not necessarily limited to the best interest of the child, the wishes of the biological parents, the suitability of persons referred for placement, the child's ties to the tribe, and the child's ability to make any cultural adjustments necessitated by particular placement.  Matter of Adoption of M., Wash.App. Div. 2 1992, 832 P.2d 518, 66 Wash.App. 475.  Indians  6.10


In adoption proceeding, evidence sustained finding that child had resided with adoptive mother for three years, that a close mother-child relationship with adoptive mother had been established, and that the child's removal would cause psychological damage, and therefore, trial court did not abuse its discretion in ordering adoption of the child and declining to follow the preferences of adoptive placement contained in this section.  Matter of Appeal in Maricopa County Juvenile Action No. A-25525, Ariz.App.1983, 667 P.2d 228, 136 Ariz. 528.  Adoption  13;  Indians  6.10


8. Foster care


If foster-home placement was necessary for Indian children in future, court making disposition should consider cultural adjustments that children who had not lived in Indian environment would have to make and their individual ability to make those adjustments, rich Indian heritage children would be deprived of if placed in white foster home, preference of Indian child or parent, and protection of best interests of Indian children.  In Interest of J.R.H., Iowa 1984, 358 N.W.2d 311.  Indians  6.6(1)


Court has not adequately considered placement in foster care or preadoption as required by federal Indian Child Welfare Act when no inquiry occurs as to whether child's tribe has licensed, approved, or specified foster home, so as to support finding of good cause for placement of child in category contrary to those specified by the Act.  Matter of N.L., Okla.1988, 754 P.2d 863. Indians  6.6(1)


9. Anonymity of parent


Tribe's right to enforce statutory preferences for adoptive placement of Indian children, which called for placement with child's extended family, prevailed over Indian parent's statutorily recognized interest in anonymity.  Matter of Baby Girl Doe, Mont.1993, 865 P.2d 1090, 262 Mont. 380.  Indians  6.10


10. Review


Under Indian Child Welfare Act, factual support must exist in trial record for purposes of appropriate appellate review as to good cause for failure to comply with statutory child placement preference directives.  In re Interest of C.W., Neb.1992, 479 N.W.2d 105, 239 Neb. 817.  Indians  6.6(3)


Under subsec. (e) of this section, factual support in trial court record as to  "good cause" for failure to comply with child placement preference directives are necessary for appropriate appellant review.  (Per McCown, J., with one Justice concurring and three Justices concurring in result.)  In re Interest of Bird Head, Neb.1983, 331 N.W.2d 785, 213 Neb. 741.  Infants  246


25 U.S.C.A. § 1915, 25 USCA § 1915



Approved 07-28-05

 

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