1. INDIAN CHILD WELFARE ACT OF 1978
A Brief Summary

2. Contents Historical Perspective - Pre 1978 Federal Policy Behind ICWA
Applicability of ICWA
Proceedings Not Covered
Jurisdiction
Procedural Requirements
Placement Provisions

3. Historical Perspectives- Pre 1978
States w/significant NA populations: 25-35% of children were removed and placed in foster or adoptive homes;
Minnesota: 1 of 4 under one adopted; usually by non-native families
1969: Survey of 16 states - 85% of NA children placed in non-native foster homes’
1971: 17% of NA children removed and placed in BIA boarding schools

4. Historical Perspective - Pre 1978
Removal based on: Anglo traditions and practices: NA leaving children with extended family for prolonged periods;
Alcoholism: disproportionate rate of removal compared to other families afflicted;
Due Process: no counsel, no interpretors, and non-native SW as expert witness

5. Federal Policy Behind ICWA
Realization that NA have unique practices and traditions regarding child rearing
Holistic: social structure and oral storytelling which focused on land & animals and key to tribal existence;
Unwritten rules regarding group relations; behavior so governed;
Removal from group is disastrous

6. Federal Policy Behind ICWA
ICWA not a racial distinction, but a political relationship
Tribes = domestic dependent nations
Congress = exclusive authority to regulate commerce with Indian Tribes - very broad and expansive definition
States = not authority if clash with Federal

7. Federal Policy Behind the ICWA
Indian Nations retain inherent authority to regulate relations among members: marriage, divorce/property distribution, adoption, rights and privileges of children
ICWA codifies and reaffirms the continued authority of tribes over their members

8. Federal Policy Behind ICWA
“It is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian Tribes and families by the establishment of minimal federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which

9. Federal Policy Behind ICWA
Will reflect the unique values of Indian culture, and by providing assistance to Indian Tribes in the operation of child and family service programs.”
Summary: further the best interests of NA children; integrity and future of Tribes; and assistance with programming

10. Applicability of ICWA
ICWA applies only to child custody proceedings in state courts, defined as:
“foster care placement” - any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but whose parental rights have not been terminated.

11. Applicability of ICWA
IWCA applies only to child custody proceedings in state courts, defined as:
TPR - any action resulting in the TPR;
Preadoptive Placement - temporary placement of an Indian Child in a foster home or institution after the TPR, but prior to or in lieu of adoptive placement;
Adoptive Placement - the permanent placement of an Indian child for adoption including any action resulting in a final decree of adoption

12. Proceedings Covered ICWA applies in child custody preceedings when:
Indian child - member of or eligible for membership in an Indian Tribe and be a biological child of a member of an Indian Tribe;
Secretary of Interior - publishes a list of Tribes eligible for federal services or programs; I.E. Tribe must be federally recognized

13. Proceedings Covered ICWA applies in child custody proceedings when:
Relevant Tribe declares the child is a member or eligible for membership
Relevant Tribe has the inherent authority to determine & such determinations are binding on federal and state governments

14. Proceedings Not Covered
Divorce Proceedings: ICWA did not intend to supplant parents rights to custody of children in divorce or similar proceedings
IntraFamily Disputes*: Non-parent of a NA child awarded custody in a divorce or similar proceeding (Exception:unless they apply to a court against the wishes of the parent; or TPR for step-parent adoptions)

15. Proceedings Not Covered
Delinquency: Does not apply to a placement outside of the home if it is a result of an “act which, if committed by an adult, would be deemed a crime.
Voluntary Placements: “foster care placement” excludes placements where the parent can regain custody of the child upon demand******

16. Proceedings Not Covered
Judicially Created Exceptions: Mississippi Band of Choctaw vs Holyfield - Miss. Supreme Court upheld the decision to permit an adoption of twins of reservation domiciled couple to a non-native family off the reservation
U.S. Supreme Court: rejected the decision and returned to Tribal Court - parents actions doesn’t defeat ICWA - Tribe has rights

17. Proceedings Not Covered
Judicially Created Exceptions:
Washington, Oklahoma, and Alabama have held the exception is alive and well
Summary: Most states have applied the clear language of the statute and held that ICWA applies in any child custody proceeding involving NA children

18. Jurisdiction
ICWA vests Tribal Court with exclusive jurisdiction over child custody proceedings “when an Indian child resides or is domiciled within the jurisdiction of such tribe;I.E. Reservation
Reservation - should be defined broadly; “Indian Country”; don’t interpret in a manner that frustrates congressional intent

19. Jurisdiction - Transfer
If a child custody proceeding arises outside the jurisdiction of the Tribe- I.E., State Court, ICWA provides for the proceeding to be transferred to Tribal court absent:
declination by the Tribe
objection by a parent
good cause

20. Jurisdiction -Transfer
ICWA permits four separate parties to request a transfer to Tribal Court:
Mother
Father
Indian Tribe
“Indian Custodian” - Recognized by the Tribe and on paper

21. Jurisdiction - Transfer
ICWA permits for the objection of transfer:
Natural parent, Indian or Non-Indian
Indian adoptive parent

22. Jurisdiction Denial of transfer based on good cause*
BIA guidelines for denial:
No Tribal Court; however, definition is broad
Proceeding at an advanced stage
Child over 12 objects
Parent(s) unavailable; child little/no contact with members of Tribe & child over 5 yrs old
Inconvenient forum

23. Jurisdiction-Reassumption
ICWA provides for the Tribal reassumption of jurisdiction over child custody proceedings
Recognized Tribe without a tribal court, but have plans to reassume jurisdiction as well as administer to the cases

24. Procedural Requirements- Notice
Indian Tribes role critical in the initial determination of applicability of ICWA:
Notice is imperative anytime the parties suspect a Indian child is involved
Notice to every tribal affiliation
Good standard: notify whether voluntary or involuntary; domiciled on or off or unsure; check state law for notices

25. Procedural Requirements-Notice
ICWA requires notice by:
Registered Mail, return receipt requested
to parents, Indian custodian, Tribe, or Dept of Interior if Tribal affiliation is unknown
Proceeding cannot advance until at least 10 days after notice has been effected

26. Procedural Requirements-Notice
Notice shall include:
Name of the child
Tribal affiliation, if known
Copy of petition or documentation
Name of petitioner and their attorney
Statement informing parents, Indian custodian, and tribe with respective rights to intervene

27. Procedural Requirements-Notice
Notice shall include:
Right of parents or Indian custodian to counsel or appointment of counsel
Statement the parties may have up to 20 days to prepare upon request
Location, mailing address, and phone # of the Court
Statement the parties have a right to request transfer to Tribal Court

28. Procedural Requirements-Notice
Notice shall include:
Potential legal consequences on the rights of parties if the child is adjudicated
Statement the child custody proceedings should be kept confidential

29. Procedural Requirements-Standards of Proof - Foster Care
Active Efforts have been made to provide remedial and rehabilitative services designed to prevent the breakup which have been unsuccessful
Clear & Convincing evidence, supported by the testimony of a QEW that continued custody is likely to result in serious emotional or physical damage

30. Procedural Requirements - QEW
Member of the Indian child’s Tribe who is recognized by the Tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices

31. Procedural Requirements - QEW
A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child’s Tribe.
A professional person having substantial ed & exp. In the area of their speciality

32. Procedural Requirements- QEW
Purpose - to provide the court with knowledge of the social and cultural aspects of Indian life to diminish the risk of any cultural bias
Defer to the Tribe to ID the QEW

33. Procedural Requirements - Standards of Proof - TPR
ICWA requires that to support a TPR, a petitioner must establish, by evidence beyond a reasonable doubt, that the continued custody of the parents or Indian custodian would result in serious emotional or physical damage to the child
BIA silent on conditions

34. Procedural Requirements -Voluntary Foster Care
Valid consents must be:
Given in writing
recorded before a judge of competent jurisdiction
certified to by the presiding judge that the consequences of the consent were fully explained

35. Procedural Requirements - Voluntary Placements
Valid Consents must be:
certified by the court that the parent or custodian understood the explanation
executed after the child is ten days old

36. Procedural Requirements Voluntary Placement
ICWA mandates the unconditional return of custody to a parent who executed a lawful consent to foster care placement
No formal requirement for revocation
Oral notice would suffice

37. Procedural Requirements Voluntary TPR/Withdrawal
Consent provisions are similar to voluntary foster care placement
Parent or Indian custodian may withdraw consent for any reason at any time prior to the entry of a final decree of termination or adoption - child shall be returned

38. Procedural Requirements - Full Faith & Credit
ICWA unequivocally provides that: the United States, every state & federal territory, and every Indian Tribe must give full faith and credit to the “public acts, records, and judicial proceedings of any Indian Tribe applicable to Indian child custody proceeding to the extent that those entitites give full faith and credit to…” “ of any other entity.

39. Placement Provisions Preferences - Foster Care
An Indian child shall be placed with:
a member of the Indian child’s extended family
a foster home licensed, approved, or specified by the Indian child’s Tribe;

40. Placement Provisions Preferences - Foster Care
An Indian Child shall be placed with
an Indian foster home licensed or approved by an authorized non-Indian licensing authority, or
an institution for children approved by an Indian Tribe or operated by an Indian organization which has a program suitable to meet the child’s needs

41. Placement Provisions Preferences - Adoptive
An Indian Child shall be placed with:
Extended Family
Other members of the child’s Tribe
Other Indian families

42. References
Jones, B. J The Indian Child Welfare Act Handbook: A Legal Guide to the Custody and Adoption of Native American Children. American Bar Association, Chicago, Il.
Indian Child Welfare Law Center