Opinion of the Court
child’s tribe; or (3) other Indian families.” §1915(a). For foster care, a preference is given to (1) “the Indian child’s extended family”; (2) “a foster home licensed, approved, or specified by the Indian child’s tribe”; (3) “an Indian foster home licensed or approved by an authorized non-Indian licensing authority”; and then (4) another institution “approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs.” §1915(b). For purposes of the placement preferences, an “Indian” is “any person who is a member of an Indian tribe,” and an “Indian organization” is “any group … owned or controlled by Indians.” §§1903(3), (7). Together, these definitions mean that Indians from any tribe (not just the tribe to which the child has a tie) outrank unrelated non-Indians for both adoption and foster care. And for foster care, institutions run or approved by any tribe outrank placements with unrelated non-Indian families. Courts must adhere to the placement preferences absent “good cause” to depart from them. §§1915(a), (b).
The child’s tribe may pass a resolution altering the prioritization order. §1915(c). If it does, “the agency or court effecting the placement shall follow such order so long as the placement is the least restrictive setting appropriate to the particular needs of the child.” Ibid. So long as the “least restrictive setting” condition is met, the preferences of the Indian child or her parent cannot trump those set by statute or tribal resolution. But, “[w]here appropriate, the preference of the Indian child or parent shall be considered” in making a placement. Ibid.
The State must record each placement, including a description of the efforts made to comply with ICWA’s order of preferences. §1915(e). Both the Secretary of the Interior and the child’s tribe have the right to request the record at any time. Ibid. State courts must also transmit all final adoption decrees and specified information about adoption proceedings to the Secretary. §1951(a).
