Welfare Act Law Center
Legal services and
advocacy for Indian families.
The Indian Child
Welfare Act (ICWA)
protects Indian children
and promotes stability
of Indian tribes
Welfare Act Law Center
1730 Clifton Place
Minneapolis, MN 55403
Mon – Fri 8:30 to 4:30
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Indian Child Welfare Act Outline
Law and Resources.
The Indian Child Welfare Act of 1978, 25 U.S.C. § 1901, et seq. (ICWA or Act) provides procedural safeguards in actions involving Indian Children.
Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et. seq. (ICWA).
Does the ICWA Apply?
- BIA Guidelines for State Courts, Indian Child Custody Proceedings, 44 Fed. Reg. 67584-67595 (November 26, 1979).
- Code of Federal Regulations, 25 C.F.R. Part 23 (January 13, 1994)(Bureau of Indian Affairs - Indian Child Welfare Act Rules and Regulations).
- Indian Child Welfare Act; Receipt of Designated Tribal Agents for Service of Notice, 64 Fed. Reg 11490 (March 9, 1999).
- Indian Child Welfare Law Center Website, Judges Checklist initially prepared by Janet C. Werness, Esq., http://glrain.net/icwalc/judges.html.
- Department of Interior-Bureau of Indian Affairs Web Page. http://www.doi.gov/bia.
In general, there are three thresh hold requirements for the ICWA to apply. An "Indian Child" must be involved in a "Child Custody Proceeding" where the child is being removed (involuntary proceeding) from a "parent" or "Indian custodian."
- An Indian Child.
- Indian Child under ICWA is defined as unmarried under 18 and a member of a tribe or eligible for membership and a biological child of a member. 25 U.S.C. § 1903(4).
- The tribe determines whether a child is a member or eligible for membership. 25 U.S.C. § 1903(5).
"Child Custody Proceeding." ICWA applies to involuntary proceedings in state court. 25 U.S.C. § 1903(1) & 1912(a).
Removal from parent
- Foster Care Placements.
- Voluntary placement
- Status offense where placement is at issue
- Third party custody
- Order for protection
- Involuntary custody disputes intra-family
- Termination of parental rights either voluntary or involuntary.
- Exclusions. A custody action between parents, and a placement based upon an act which, if committed by an adult, would be a crime. 25 U.S.C. § 1903(1).
(defined at 25 U.S.C. 1903(9)) or Indian custodian (defined at 25 U.S.C. § 1903(6).
What court has jurisdiction under the Act?
Procedural Requirements of the Act.
- Exclusive tribal court jurisdiction if the child is domiciled on or resides on the reservation, or the child is a ward of the court. 25 U.S.C. § 1911(a).
- Concurrent tribal and state court jurisdiction if child is domiciled off the reservation. The exceptions to tribal court jurisdictions are objections by either parent, or declination by the tribal court, or good cause exceptions. 25 U.S.C. § 1911(b); Fed. Reg. Vol. 44, No 228, Nov. 1979, C.
- Full faith and credit must be given to the public acts, records, and judicial proceedings of any Indian tribe applicable to child custody proceedings by the United States or any state. 25 U.S. C. § 1911(d).
- A court shall apply the state or federal standard which has a higher standard of protection to the rights of the parent or Indian custodian. ICWA preempts conflicting state law. 25 U.S.C. § 1921.
Mandatory Placement Priorities of the ICWA.
- Notice to parents, Indian custodian and tribes usually 10 days with 20 additional days if requested. 25 U.S.C. § 1912(a). Notice requirements can be found in at Fed. Reg. Vol. 44, Nov. 1979, B.5.
- Transfer to tribal court jurisdiction. 25 U.S.C. 1911(a) & (b).
- ribes have a right to intervene in the state court proceeding. 25 U.S.C. 1911(c).
- Parents and Indian custodians have a right to legal counsel. 25 U.S.C. § 1912(b). The court may appoint attorney for child if in the child's best interests. Id.
- Qualified expert witness testimony is required before there can be an out of home placement or a termination of parental rights. 25 U.S.C. § 1912 (e) & (f); See also, Fed. Reg., Vol. 55, No. 228, (Nov., 26, 1979), D.4.
- Foster Care Placements. Burden of Proof for foster care placements is clear and convincing evidence including expert witness testimony that continued custody is likely to result in serious emotional or physical damage to a child.
- Termination of Parental Rights. Burden of Proof is beyond a reasonable doubt including expert witness testimony that continued custody is likely to result in serious emotional or physical damage to a child. 25 U.S.C. § 1912(f).
- Any party seeking foster care placement or termination of parental rights must prove they provided active efforts to prevent the breakup of the Indian family. 25 U.S.C. § 1912(d).
- Parental consent to voluntary foster care placements or voluntary termination of parental rights must be in writing signed before a judge and accompanied by a judge's certification the person understood the contents of the writing. 25 U.S.C. § 1913(a). Voluntary terminations may be withdrawn before a final decree is granted. 25 U.S.C. § 1913(c). A final decree of adoption of an Indian child may be vacated if provisions not followed. 25 U.S.C. § 1913(d).
- Adoptive Placement Preferences. 25 U.S.C. § 1915(a).
- Member of the child's extended family;
- Other member of the Indian child's Tribe; or
- Other Indian families.
- Foster Care or Pre-adoptive Placement Preferences including a least restrictive setting requirement. 25 U.S.C. § 1915(b).
- Member of Indian child's extended family;
- Foster home licensed, approved, or specified by the Indian child's tribe;
- Indian foster home licensed or approved by an authorized non-Indian licensing authority;
- An institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs.
- Tribal law supercedes above placement preferences. 25 U.S.C. § 1915(c).
Invalidation of proceeding and possible return of child. 25 U.S.C. § 1914; 25 U.S.C. § 1916.
Vacation of adoption decree and return of child. 25 U.S.C. § 1913(d).