Wabanaki Legal News, Spring 2011
What is the Indian Child Welfare Act?
The Indian Child Welfare Act (ICWA) is a federal law that regulates state court placement proceedings involving Indian children. ICWA applies to any child protective case, adoption, guardianship, termination of parental rights action, or voluntary placement of Indian children.
When & Why was ICWA passed by Congress?
Congress created the ICWA in 1978 to restore tribal authority over the placement of Indian children. The goal was to strengthen and preserve Native American families and culture.
Before the ICWA, a very high percentage of Indian families were broken up because non-tribal agencies removed children from their homes. One reason for the high removal rate was because state officials did not understand or accept Indian culture. Today, ICWA sets standards for the removal of Indian children from their homes.
What children does ICWA apply to?
Those who are:
- Under age 18
- Either (A) a member of a federally recognized Indian tribe or (B) eligible for membership in a federally recognized Indian tribe and the biological child of a tribal member.
What does ICWA require state agencies and courts to do?
ICWA requires that placement cases involving Indian children be heard in tribal courts (if possible), and permits a child's tribe to be involved in state court proceedings. (ICWA does not control tribal court proceedings unless adopted by the individual tribe).
In state court, ICWA requires testimony from expert witnesses familiar with Indian culture before a child can be removed from his/her home. If a child is removed (for either foster care or adoption), the law requires that he/she be placed with extended family members, other tribal members, or other Indian families.
What tribes does the law apply to?
Federally recognized tribes anywhere in the United States. In Maine, these tribes are: Penobscot Nation, Passamaquoddy Tribe, Houlton Band of Maliseet Indians, and the Aroostook Band of Micmacs.
Who decides tribal membership?
ICWA does not determine membership. Individual tribes decide who is a member or eligible for membership.
When does ICWA NOT apply?
Divorce cases or other custody cases between parents (if custody is awarded to one of the parents)
Cases of minors charged with delinquent acts that would be considered criminal if done by an adult. However, ICWA may apply to a criminal or delinquency case if an out-of-home placement continues for a long time due to problems in the child's home.
What rights does the child's tribe have under ICWA?
If a state court is asked to remove a child from the care of an Indian parent and has reason to believe the child is Indian, the court must notify the child's tribe of the proceedings. The notice must be in writing and indicate the tribe's right to become a party to the case.
The child's tribe may either take control of the case or continue as a party in the state court case.
If the case stays in state court, the tribe's opinion must be considered.
The court must consider only the Indian community standards of a suitable home, not the standards of the non-Indian community.
Get Legal Help To Enforce ICWA
You should seek legal help immediately if faced with state action that may result in the removal of Indian children. It is critical for Indian parents to tell their lawyers, the judge, and social workers that their child is a member of (or eligible for membership in) an Indian tribe. If you do not already have an attorney, seek help from one as soon as possible. Make sure your attorney knows about the ICWA.
The Native American Unit at Pine Tree Legal gives high priority to ICWA violation cases. NAU may not need to accept a case for direct representation when tribes, parents, and Indian custodians are given proper notice, and court-appointed counsel is available and familiar with ICWA. However, the NAU can provide advice and brief service. This includes contacting the tribe, the client's attorney and/or the court to ensure proper application of the ICWA.
Potential violations of ICWA to watch for:
- Failure to identify the child as an Indian child. Only tribes can determine membership and eligibility for membership, not attorneys, social workers or judges.
- Placements with grandparents or other relatives can be child custody proceedings covered by the ICWA. The key is removal from the parent or Indian custodian.
- Placements resulting from “status offenses” (i.e. truancy, curfew, runaway or minor consumption) are ICWA proceedings. Old juvenile delinquency placements may become ICWA cases when the delinquent acts become remote in time, and when other factors (such as inadequate parenting) are the real cause of continued placement.
- Hearing notice to parents, Indian custodians and tribes must be by registered mail at least 10 days before the hearing date. This is determined by the time of receipt of notice, not the mailing date. 20 days continuance must be granted on timely request.
- Proceedings must be transferred to tribal court upon timely request by parent or tribe, unless a parent objects, the tribe declines, or the state judge finds “good cause.”
- The tribe, child and Indian custodian have a right to intervene at any time.
- Before placement, there needs to be clear and convincing evidence of likelihood of serious emotional or physical damage to the child. Poverty, inadequate housing, and alcohol abuse are not clear and convincing evidence on their own.
- State must prove active efforts to meet child's needs without a placement.
- Placement preferences (starting with extended family) must be followed, unless tribe establishes by resolution (not case by case) a different preference or state judge finds “good cause.”
- Voluntary consent to termination of parental rights is not valid unless done in writing and recorded before a judge.