Is this child an “Indian Child?” – When do you have “reason to know” that a child is an “Indian child?”
This law uses the term “Indian Child” to refer to child members of federally recognized indigenous Native American political and cultural units. These units can be called tribes, bands, nations or any variety of nomenclature. For clarity, this blog posts uses the terms found in the law and in the mandatory forms when necessary to avoid confusion.
Sometimes, kids move from their previous family to a new family. The Indian Child Welfare Act (ICWA) is designed to maintain a Native American child’s ties to their heritage and tribe as much as possible – sometimes giving preference to an “Indian” relative over a “non-Indian” relative. Under Washington and federal law, the court must consider many additional factors and apply a more complex analysis for any child placement case involving indigenous Native American children. When asking the court to approve a move, the person asking for it (the “Petitioner”) needs to state whether the child is an “Indian child.”
But how do you know a child is an “Indian child”? When do you have “reason to know?”
In September 2019, the Supreme Court of Washington adopted a broad interpretation of “Reason to know” in Indian child cases.1 If any participant in the case indicates that the child may have tribal heritage, the court must go through the process of determining if the child is a member or eligible for membership in a federally recognized tribe and thus under the protection of the ICWA. If there is any doubt, the court will presume there is qualified indigenous Native American heritage and maintain that presumption until the relevant tribe decides the children’s membership and/or eligibility.
Knowing the specific tribe is not necessary, knowing what quantum of qualified blood they have is not necessary. Knowing whether the eligibility rules of the tribe apply to the child… is not necessary. The court set this broad definition of “reason to know” because it’s not the family’s responsibility or within the state court’s authority to determine tribe eligibility – only the tribe itself can do that.
Any person trying for an adoption, guardianship, or any sort of removal of a child from one home to another, is required to state whether the ICWA applies in their initial pleadings to the court. If you are aware of family traditions, stories, or even rumors suggesting the children could possibly be “Indian children,” you have a “reason to know” that the ICWA may apply. Such awareness necessitates telling the court and starting the ICWA process. The children may still ultimately be moved if it is in their best interest or they are not eligible for membership, but the process becomes longer and more complicated for everyone.
If you are involved in a custody, guardianship or any other matter involving children who could possibly be indigenous Native American children, it is vital you seek expert representation. Look for a firm that has a deep bench of experience in the ICWA and Washington adoption matters. The kids are worth it.