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Federal and Washington State Indian Child Welfare Acts

Washington State is home to one of the largest Native American populations in the country. Sadly, there is a history of Native American and Alaska Native children being removed from their homes at a much greater rate than non-Native children. To protect these children and the interests of Native American and Alaska Native tribes and communities the federal Indian Child Welfare Act (“ICWA”) was enacted in 1978. A substantially similar state law was enacted in Washington in 2011.

Under the requirements of ICWA, when an Indian or Alaskan Native child is to be adopted or transferred to the custody of a non-parent, the child’s tribe has a right to notice of the case and to intervene and advocate for the child to remain in a Native American or Alaska Native home. In addition, in a voluntary adoption of a Native child by the child’s parents, the parents have a longer time period to change their mind about the adoption and can only give their consent to the adoption in person in court. If one of the child’s parents is alleged to be unfit, Washington’s ICWA requires that active efforts must have been made to assist that parent in resolving their parental deficiencies. Because of these and other legal requirements, if you wish to adopt a Native child, you will need the guidance of an experienced adoption attorney.

Adoption Lawyer in Seattle, Washington

Joyce Schwensen founded a licensed adoption agency in Washington and directed that agency for ten years. In addition, she has 34 years of experience in private law practice, including eighteen years helping Washington State residents build their families through adoption. She is knowledgeable regarding the federal and Washington State Indian Child Welfare Acts and can provide essential advice and guidance to anyone seeking to adopt a Native American or Alaska Native child.

Joyce Schwensen proudly represents all couples and individuals wishing to adopt in communities across Washington including Seattle, Bellevue, King County and Snohomish County. If you are interested in working with Joyce as your adoption attorney, call (206) 367-1065 or submit a request using the online contact form on this website.


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What is the Indian Child Welfare Act?

The Indian Child Welfare Act was enacted in 1978 in response to a large number of Native children being separated from their families and communities by child protective services and private adoption agencies.

Research found that 25% to 35% of all Native children where being removed from their tribes. Nearly 85 % of them were placed with non-Indian families, even when willing relatives were available.

According to section 1902 of the US Code, the Indian Child Welfare Act was created with the intention of protecting the best interests of Native children, and to promote the stability and security of Indian tribes and their families. To do this, Congress and Washington State established minimum standards for the removal of Native children from their families and communities to ensure they are placed in homes that will keep them connected to their Native culture.


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Who is Covered under ICWA?

Anyone who is seeking to adopt a child in the United States must make a good faith effort to determine whether the child is an “Indian Child” within the meaning of the Indian Child Welfare Acts. An “Indian Child” is defined in the law as an unmarried minor who is:

  • A registered member of a federally recognized Indian tribe or Alaska Native corporation, or
  • Is eligible to be a member of a federally recognized Indian tribe or Alaska Native corporation, or
  • Is the biological child of a member of an Indian tribe or Alaska Native corporation.

Each tribe or corporation has the authority to determine which children meet the qualifications for tribal or corporate membership. Because of this, the biological parents of any child being placed for adoption must be asked for information about whether they have Native American or Alaska Native status. If they do, the tribe or tribes with which they have a historical connection must be contacted to determine whether the child to be adopted is eligible for membership under that tribe’s rules.


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What Rules Apply to Adoption of an Indian or Alaska Native Child?

If a child possibly has Native American or Alaska Native heritage, the procedures for adoption of the child are significantly different than for non-Indian children. First of all, the child’s tribe or corporation must be given formal notice of the adoption proceeding. If the child resides on tribal property, then the adoption case can be moved to tribal court at the tribe’s request. Even if the child does not reside on tribal property, the tribe can intervene in the adoption case.

The tribe can set a preference for who should be allowed to adopt the child. A tribe will typically prefer the child to be placed with:

  • A member of the child’s extended family
  • Members of the child’s tribe
  • Another Indian family

This does not mean the child can’t be placed in a non-Indian home. A court can place an Indian child in a home that does not meet the tribe’s preferences if good cause for doing so is shown. This may include:

  • The request of the child’s parents or custodian;
  • The request of the Indian child him or herself;
  • The emotional or physical needs of the Native child;
  • The unavailability of a suitable family based on the tribe’s preferences.

In addition to the involvement of the child’s tribe, the child’s biological parents receive protections under ICWA, including that they cannot relinquish a child until the child is at least 11 days old, and that they must appear personally in court to agree to the relinquishment of the child.

In addition, under the Washington ICWA if either or both of the child’s biological parents are claimed to be unfit, whether due to abandonment of the child, failure to support the child, substance abuse, criminal history, or other problems, the party seeking to adopt the Indian child must make active efforts to provide services to the parent or parents to help them try and remedy their parental deficiencies. This can create a significant obstacle to the adoption of an Indian child due to the expense and uncertainty involved in meeting this requirement. 

Adoption proceedings involving Indian children are complicated and have a high risk of failure in many cases, especially for non-Native adoptive parents. If you are considering the adoption of an Indian child, you should seek the guidance of an experienced adoption attorney.


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Additional Resources for the Indian Child Welfare Act in Seattle, Washington

Washington State Indian Child Welfare Act- Follow this link to read the full text of the state’s Indian Child Welfare Act. You can learn how the state determines Indian status, a tribe’s right to intervene and placement preferences. The act can be read on the Washington State Legislature website.

National Indian Child Welfare Association- Visit the website of the National Indian Child Welfare Association. You can learn more about the organization that preserves the Indian culture and their work to support the safety, health and spiritual strength of American Indians and Alaskan Natives.


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Adoption Attorney in Seattle, Washington

If you are considering adoption of any child, you must be certain to determine whether the child is an Indian Child and to follow the requirements of the federal and state ICWA’ s if the child is possibly protected by those laws. Joyce Schwensen is available to assist in the adoption of an Indian Child or a non-Native child. She has 34 years of experience practicing law and has helped many couples and individuals grow their families through adoption. 

Joyce Schwensen would be privileged to guide you through the adoption process. Contact her at (206) 367-1065, or submit your information in the online contact form. Joyce Schwensen proudly represents couples and individuals wishing to adopt throughout Washington State, including in Seattle, Bellevue, and all parts of King, Snohomish, Kitsap, Skagit, Whatcom, Jefferson, and Clallam Counties, Washington.


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