Indian Child Welfare Act
The Indian Child Welfare Act (ICWA) of 1978 found at 25 U.S.C. § 1901 et. seq. governs the jurisdiction over and adoption and custody of Native American or Indian Children. ICWA was enacted to prevent the removal of Indian children from their families and cultures by state agencies, courts, and private agencies. ICWA laws differ from most state’s procedural and substantive laws governing child custody proceedings. Under ICWA tribal governments have exclusive jurisdiction over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of a recognized tribe. The only exception to this rule is where such jurisdiction is otherwise vested in the state by existing federal law. ICWA can be triggered in just about any child custody proceedings, including adoption, voluntary and involuntary termination of parental rights, and removal and foster care placement of Indian children. Under ICWA state courts do not have any jurisdiction over the adoption or custody of Indian children residing within a tribal reservation. Section 1903 of United States Code defines an 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.”
ICWA applies to four types of Indian child custody proceedings:
1. Foster care placements – ICWA applies to the temporary removal of an Indian child from his or her home, for placement in a foster home or institution. This happens when the parent or Indian custodian (defined as an Indian person with custody of the child under tribal or state law or who has the child pursuant to parental placement) cannot regain custody upon demand (25 U.S.C. 1903(1)). There is an exception to this provision when the Indian child is voluntarily placed with private or public agencies where the parent or custodian can regain custody at any time. However, ICWA would apply to a guardianship in which a child is placed with a non-parent, as this fits the definition of a foster care placement.
Additionally certain state courts have limited the applicability of ICWA by holding that the law does not apply to proceedings involving the removal of an Indian child from a non-Indian family; for example, a case that involves an Indian child raised by a non-Indian mother. Known as the “existing Indian family” exception, this exception has generated some controversy.
2. Termination of certain parental rights – ICWA applies to any proceeding that may result in the termination of the parental rights of the Indian child’s parents or the custodial rights of the child’s Indian custodian. Step-parent adoption proceedings and delinquency proceedings are generally not governed by ICWA, except in situations where it results in the termination of the parental rights.
3. Pre-adoption placements.
4. Adoption placements – ICWA applies to proceedings that results in the adoption of an Indian child. It imposes an obligation on both public and private adoption agencies to comply with its provisions.
ICWA does not apply to custody disputes between divorcing parents or custody disputes relating to any other proceedings. It also does not apply to delinquency proceedings involving an Indian child who has committed an act that would constitute a crime if it were committed by an adult. However, ICWA would apply if the act committed by the child did not constitute a crime, e.g., an act of truancy or incorrigibility.
Whenever a judge or state agency has reason to believe that a child, who is involved in some type of child welfare proceeding, may be of Indian heritage they must investigate into whether that child falls under the category of children governed by ICWA. If so, that judge or agency must take active steps toward involving the child’s tribe in the proceedings and may even have to return that child to the tribe’s jurisdiction.
Website for Indian Child Welfare Act: http://www.nicwa.org/
