Icwa

My son is Native American - and the tribe said they wanted him too... And yet here he is adopted by me.My son was in care for about 5 years when his adoption finalized - about 2 of those years with me. They could only come up with a long term foster care home for him AND that home really didn't want to (the tribe was pressuring them to get certified to save "one of their own".) Obviously since they didn't really want him they never finished the work and the tribe dropped their case about wanting him. The next court date they agreed to him being adopted by me.Although the tribe WANTS the kids (and I completely understand why) they don't always have the homes AND although there is a federal law - the judge still has to do what's best for the kids - and sometimes that's giving the child a permanent home with a non-NA family.How long has the child been with you?

She's only been with us a month and a half, we are her 3rd placement. The last one she was with nearly a year but they didn't want to adopt, whereas we are an adoptive home. My husband is native so we don't have that as an issue, just disapointed that the tribe would rather see long-term fostercare then to see a positive adoption. I really had no idea ICWA could keep a child in fostercare for years past the state requirements.

ICWA/ the Tribes jursidiction supersedes any federal or state laws regarding permanancy. They can chose and sometimes do to keep the child in foster care to maintain the family/ tribal lines. If the tribe fights the adoption it is rare that a Judge can or will rule against the tribe.

Sometimes tribes don't believe in termination of parental rights which is why they choose long term foster-care. However, sometimes guardianship is an option in those situations since it maintains the birth parents as the parents but you and your husband would be guardians. If your husband is native than the tribe could be open to that depending on the other circumstances of the case.

Scandi,You said that ICWA supercedes ASFA. I'm curious---have there actually something about this in either piece of legislation? Are there any rulings on this?

I have seen this too, where tribes will use ICWA to maintain a foster placement instead of allowing adoption by an non-NA family. I also noticed that most placements of kids into NA foster-home do not lead to adoption either, they just lead to guardianship, it seems like severing bio rights is really diffiuclt to do in these cases and with tribes perfering "kinship" type placement without the adoption process occurring. I have yet to see a judge go against a tribe/bands wishes in a case, but I have seen one case where a child with minimal linage (1/16) was allowed to be adopted by a non-NA family the tribe did have imput into this decision and 4 years later they still make yearly inquirys as to his life and have ask the family to participate in cultural events with him.

ICWA and ASFA are both federal laws/policy so I am not sure that one can actually trump the other, it would most likely come down to litigation and the ability to "back up" one's position with historical cases, in which case ICWA would definetley have the advantage.

what a pain in the neck :) okay, we'll see how it goes, but it was disheartening - the state regards us as a pre-adoptive placement, the tribe told me this was just temporary, so it's a little frustrating. That being said, my cousin and his wife have adopted several NA children. His wife is NA like my husband.

ICWA trumps ASFA. We are one of those rare families that adopted Native children (if you can call them that) against their tribe's wishes. It can happen.

We were told that our case was an ICWA case too--ICWA trumps everything. Bio dad is 50% NA & Bio mom is white. R came to live with us at 15 mos & J came at 2 days old. Bio Aunt hired an ICWA attorney & decided after we had had them for 6 mos that she wanted them. Tribe declined intervention & jursidiction from the beginning which was good for us. I was told by a friend of mine who lives on the reservation that it can depend on if the parents are members, how active they are with the tribe or if there is any bad blood between them (or any of their family). Our Judge announced at a court hearing he wanted to make it clear to all parties that it was NOT an ICWA case, we were ecstatic to say the least!!! CW told bio parents that either they could relinquish or she would file the TPR papers....Our adoption was final Nov 15, 2008 when R was 2yrs 7 mos & J was almost 15 mos AND we are NOT NA!!! All this and they were our first ever foster placement! Please keep us posted on what is happening & our family will keep you in our prayers. Justina Bio mom to K, 16, M Bio mom to A, 13, M Adoption Final Nov 15, 2008--R, 2 1/2, F & J, 17 mos, M