A Texas couple is challenging a 30-year-old federal law designed to promote the adoption of Native American children by Native American parents. Foster parents Karen and Cecil Couie say they want to adopt the boy, who is part Choctaw, but Child Protective Services hope to place him with a Native American family in Oklahoma.

The Indian Child Welfare Act of 1978 gives tribal governments a strong voice concerning Native American child custody proceedings by allocating tribes sole jurisdiction over states when the child is domiciled on the reservation and concurrent, but presumptive, jurisdiction over non-reservation Native Americans’ custody proceedings.

The ICWA lays out the minimal Federal standards for nearly all Indian child custody proceedings, including adoption, voluntary and involuntary termination of parental rights, and removal and foster care placement of Indian children. It states that state courts do not have any jurisdiction over the adoption or custody of Indian children residing within their own tribal reservation. Section 1903 defines Indian child as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”

The article on CBS 11 website — Law May Take Boy From Forney Foster Parents

A federal law more than 30 years old may prevent a white couple from Forney from adopting a two-year-old child who is part Native American.
Karen and Cecil Couie are in charge of six playful kids: five foster children and one adopted child. The couple is looking to adopt again. This time, it’s their two-year-old foster child.

"That’s my baby," said Karen Couie. "He’s mine. He’s our child."

Child Protective Services placed the boy with the Couies when he was six weeks old. Four months later, CPS discovered that the boy is part Choctaw.

The state agency immediately began looking for Native American parents to adopt the child, because that’s what federal law mandates.

The law is called the Indian Child Welfare Act of 1978. It’s designed to keep Native American children with Native American parents to preserve their heritage.

CPS found a couple in Oklahoma where both parents are part Native American. But the Couies argue that breaking their parental bond would be devastating to the child.

"We have to do everything possible to keep him," said Cecil Couie. "He means that much to us. As long as we’ve done everything possible, that’s all we can do. But if we don’t, then we will always have doubt."

The couple has filed a petition in Collin County asking the court to keep CPS from placing the boy with the Oklahoma couple. A hearing is set for October 20.

CPS says foster parents are usually considered first when the child is available for adoption. In this case, CPS spokeswoman Marissa Gonzales says the agency was bound by the federal law.

The Couies say they understand the importance of heritage, but they argue that love is the most important thing a parent can pass down to a child.

Jay Gormley, CBS 11 10/09/2009

The ICWA was originally enacted by Congress in 1978 due to the high removal rate of Indian children from their traditional homes and essentially Indian culture as a whole. Before the bill was enacted, as many as 25-35 percent of all Indian children were being removed from their Indian homes and placed in non-Indian homes, with presumably the absence of Indian culture. If Indian children continued to be removed from Indian homes at this rate, true Native American Tribal survival would continue to be threatened. The children were being raised outside of Indian culture and soon would cease to be known as true Indians. Instead, they would be known as assimilated into other non-Indian cultures.

Indian children were also not being placed in conducive Indian cultural environments due to the inability of the social workers to place them in environments that were economically stable in accordance to the state regulations. In addition to that many Indian parents were being taken advantage of because they lacked adequate legal representation in child custody proceedings and were unknowingly convinced to waive their parental rights.

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

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Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

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A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.