The Indian Child Welfare Act
Indian children have a unique political status not afforded other children as members of sovereign tribal governments. This political status, as well as the history of biased treatment of Indian children and families under public and private child welfare systems, is the basis for the enactment of the Indian Child Welfare Act of 1978, Public Law No. 95-608, 92 Stat. 3069 codified at 25 U.S.C. §§ 1901-63.Purpose of the Indian Child Welfare Act
The purpose of the Indian Child Welfare Act, 25 U.S.C. §§ 1901 et seq., commonly known as ICWA, is to preserve and strengthen Indian families and Indian culture. ICWA establishes "minimum federal standards for the removal of Indian children from their families and placement in foster or adoptive homes which will reflect the unique values of Indian culture." 25 U.S.C. § 1902. It is through the children that the elders' teachings, values, languages, unique practices, and traditions are passed on and preserved. ICWA is a federal law; it supersedes state law.
ICWA applies to "child custody proceedings" in state courts. A "child custody proceeding" is defined as (25 U.S.C. § (1)), to include foster care placements, termination of parental rights, pre-adoptive placements, and adoptive placements.
State agencies should make a diligent effort to identify every child who is subject to ICWA. Section 1903 (4) of ICWA defines an "Indian child" as:
- Any child unmarried and who is under 18 and is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of Indian tribe, 25 U.S.C. § 1903 (4).
Congress, in enacting ICWA, recognized that the tribe has a direct interest in its children. The tribe is entitled to NOTICE as a party, because from an Indian perspective, a child is a sacred and precious resource that belongs to the entire tribe.
- Formal notice is required to tribe(s), the parents, and Indian custodian whenever a child custody proceeding is initiated, Section 1912 (a) of ICWA.
Exclusive jurisdiction is vested with the tribal court over any child custody proceeding involving an Indian child who:
- Resides or is domiciled within the reservation or is a ward of the tribal court regardless of the child's domicile, 25 U.S.C. § 1911 (a).
- Concurrent jurisdiction lies with the tribal and state court when a child resides or is domiciled off the reservation and the child is not a ward of the tribal court.
For those cases in which the state courts do have jurisdiction, there are important qualifications put upon that jurisdiction:
- In matters of adoption or termination of parental rights, the state must transfer the proceedings to tribal court upon petition by the parent, custodian, or tribe.
- The state must follow priorities in the placement of Indian children, with the first preference given to extended family members, then to members of his or her tribe, and then to Indian families generally.
- Child-placing agencies must provide remedial, culturally appropriate services for Indian families before a placement occurs.
- Tribes must be notified regarding the placement of Indian children.
The North American Indian Legal Services (NAILS) offers in-depth information about the ICWA requirements on their web site. For further details about the ICWA, visit their web site by clicking on their name above.
The Indian Walk-In Center (IWIC) has been serving American Indian and low-income populations along the Wasatch Front since 1984. IWIC provides services to clients from numerous ethnic backgrounds and more than fifty separate tribes. All services are provided in a culturally appropriate manner.
The Indian Child Welfare Law Center & Information website offers various flow charts for assistance in determining if the ICWA will apply in a state proceeding.