The purpose of the Indian Child Welfare Act (ICWA) is (1) to protect the best interests of Indian children, (2) to promote the stability of Indian tribes and families, and (3) to establish minimum standards for the removal and placement of Indian children.
ICWA is intended to regulate states when it comes to removal and placement of Indian children after decades of Indian children removed and placed into non-Indian families. Through ICWA, tribal sovereignty and the legitimacy of tribal courts are affirmed through a preference for tribal courts to adjudicate welfare proceedings where there is concurrent jurisdiction, meaning that both states and tribes have jurisdiction in a particular case.
For the purposes of ICWA, an Indian child is any unmarried person under the age of 18 who is a member of a tribe or is eligible for membership in a federally recognized tribe and who is the biological child of a member of an Indian tribe.
Quick Look at ICWA Requirements
ICWA has an important number of requirements that safeguard against the removal of Indian children.
Under ICWA, notice must be given to the child’s parent (or Indian custodian) and the child’s tribe by the adjudicating state court. Notice must be made by registered mail, return receipt requested, of the pending proceeding and the parent’s and tribe’s right to intervene.
Counsel and Examining Court Documents
ICWA also requires courts to appoint attorneys to parents in state adjudications. If the identity of the parent or tribe cannot be determined, notice must be sent instead to the Secretary of the Interior. Furthermore, under ICWA all parties have the right to examine all reports and documents filed with the court.
Any party seeking to effect a foster care placement or the termination of parental rights of an Indian child under an existing state law shall satisfy the court that active efforts – which means going beyond the state’s standard of “reasonable efforts” – have been made to provide remedial services and rehabilitative programs to prevent the break-up of the Indian family. The party must also demonstrate that those efforts have failed.
foster care placement may be made unless it is supported by “clear and convincing evidence,” including testimony by a qualified expert witness, that continued custody of the Indian parent or custodian is likely to result in serious emotional or physical harm to the child. Where Indian parental rights might be terminated, the determination must be based on evidence “beyond a reasonable doubt,” including the testimony of a qualified expert witness, that continued custody by that Indian parent or custodian is likely to result in serious emotional or physical harm to the Indian child.
When placing an Indian child in foster care, the authorized social services agency is required to place the child with (1) a member of the child’s extended family, (2) a foster home certified, approved, or specified by the Indian child’s tribe and approved by the agency, (3) an Indian foster care home certified or approved by the authorized agency to provide services, (4) an institution for children approved by an Indian tribe or operated by an Indian organizations that has a program to meet the needs of the child. Unless there is good cause to the contrary, the authorized agency is required to use the above preferences.
When placing an Indian child up for adoption, the authorized agency providing adoption services must place the child with: (1) a member of the child’s extended family, (2) other members of the child’s tribe, or (3) other American Indian families. Like with foster care, these preferences must be followed in the absence of good cause to the contrary. Furthermore, tribes may establish a different preference order for both foster care and adoptive placements.
As mentioned above, qualified expert witnesses play an important role in legal proceedings. Under Bureau of Indian Affairs guidelines there are three types of qualified expert witness:
- A member of the child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family or organization in child rearing practices (first preference)
- A lay expert witness having substantial experience in the service delivery to Indian children and families and an extensive knowledge or prevailing cultural standards and child-rearing practices within the child’s tribe.
- A professional having substantial education and experience in the area of his or her specialty.