Legal Memorandum: Adoptive Placement Preferences under ICWA

Issue: When is the Minnesota adoption of an Indian child by a non-Indian consistent with the Indian Child Welfare Act?

The Indian Child Welfare Act (ICWA) sets forth certain preferences that must be applied in any adoptive placement of an Indian child under state law.   According to the Act, in any such placement, “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.”  25 U.S.C. § 1915(a)(1) (1999) (emphasis added).  Accordingly, in order for the adoption of an Indian child by a non-Indian family to be consistent with the terms of the ICWA, there must be good cause to deviate from the Act’s placement scheme.

The ICWA does not define “good cause.”  The Bureau of Indian Affairs has published guidelines, however, that offer guidance to state courts interpreting the placement preferences provision.  See, e.g., In re Custody of S.E.G., 521 N.W.2d 357, 361 (Minn. 1994).  The Guidelines for State Courts; Indian Child Custody Proceedings describe the circumstances that create good cause to modify the placement preferences of the ICWA.

(a)        For purposes of foster care, preadoptive or adoptive placement, a determination of good cause not to follow the order of preference set out [in § 1915(a)(1)] shall be based on one or more of the following considerations:

(i)         The request of the biological parents or the child when the child is of sufficient age.

(ii)        The […]

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