Another option when petitioning the court is to use the Indian Child Welfare Act if you have Native American in your heritage. In fact, it can be the key to a successful petition to open a sealed adoption file.
The Indian Child Welfare Act was passed in 1978 to address congressional findings that “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and….. that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”
One section of the Indian Child Welfare Act is of particular interest to adoptees. Section 1951b states “Upon the request of the adopted Indian child over the age of eighteen, the adoptive or foster parents of an Indian child, or an Indian tribe, the Secretary shall disclose such information as may be necessary for the enrollment of an Indian child in the tribe in which the child may be eligible for enrollment or for determining any rights or benefits associated with that membership. Where the documents relating to such child contain an affidavit from the biological parent or parents requesting anonymity, the Secretary shall certify to the Indian child’s tribe, where the information warrants, that the child’s parentage and other circumstances of birth entitle the child to enrollment under the criteria established by such tribe.”
Essentially this section directs the State to give adult adoptees of Native American heritage who request it, their birth information, so that they may enroll in their tribes. The section does allow for birth parents to file a veto, but even then the adoptee is entitled to tribal notification so that they may process their tribal rights and privileges. You can read the Indian Child Welfare Act at http://darkwing.uoregon.edu/~adoption/archive/ICWAexcerpt.htm
There are a few problem areas with using the Indian Child Welfare Act.
Many adoptees are of enough Native American blood to qualify for enrollment in their tribes, but there is nothing documented that verifies that information. Before a judge will open a file under the Indian Child Welfare Act he or she will often demand some sort of proof that the adoptee is Native American. This is proof that most adoptees will simply not have. But in other instances, the agency that handled the adoption, or the court file itself, will contain notations that you, the adoptee, do have Native American ancestry. If you have received non-ID from a source that states this, include a copy with your court petition. You will also need to include a copy of the Indian Child Welfare Act in order to make the judge’s work easier and predispose him/her to wanting to help you. If you have any information at all that you are even the smallest bit Native American, you should use the Indian Child Welfare Act in your petition. Include affidavits from family members who have told you that you have Native American blood, as well as any ‘official’ agency or other documents to support your claims. Remember that most tribes have small blood quantum requirements, and you should not feel guilty about using the Indian Child Welfare Act. The intent of this law is to ensure that those of us who are entitled to tribal membership by birthright, have the *choice* to join our Native American communities.