Indian Child Welfare Act (ICWA)

Below is information about how and when ICWA applies after an American Indian child is removed from the custody of a parent or a family member by state Department of Child Safety.

What is ICWA, and why was it passed?

The Indian Child Welfare Act is a federal law passed in 1978 by the United States Congress. ICWA was passed in response to public and private agencies removing high numbers of American Indian children from their homes for reasons other than child neglect or child abuse. The intent of congress under the ICWA was to "protect the best interests of American Indian children and to promote the stability and security of American Indian tribes and families." ICWA sets federal requirements that apply to state child custody proceedings involving an American Indian child who is a member of or eligible for membership in federally recognized tribes.

How does ICWA protect American Indian/Alaskan Native children and their families?

When state Department of Child Safety removes an American Indian child from a parent(s) or a family member, the child's tribe and family will have an opportunity to be involved in decisions affecting services for the American Indian child. A tribe or a parent can also demand to transfer jurisdiction of the case to their own tribal court. ICWA sets out federal requirements concerning removal and placement of an American Indian child in foster or adoptive home and allow the child's tribe to intervene in the case.

Who is covered by ICWA?

An American Indian child who is involved in state child custody proceeding is covered by ICWA. A person may explain his or her identity as American Indian but in order for ICWA to apply, the involved child must be an American Indian child as defined by law. ICWA defines an "American Indian child" as "any unmarried person who is under age eighteen and is either (a) a member of an American Indian tribe or (b) is eligible for membership in an American Indian tribe and is the biological child of a member of an American Indian tribe." Individual American Indian tribes have the right under federal law to decide eligibility, membership, or both. However, in order for ICWA to apply, the child must be a member of or eligible for membership in a federal recognized American Indian tribe.

How do I know if my child is eligible for membership in a tribe?

All tribes have the right to decide who is a member of their tribe, and different tribes have different requirements for eligibility. Contact the child's tribe to understand these requirements for the particular tribe in question.

What if my child is American Indian but is not a member of a federally recognized tribe?

ICWA would not apply to your child's case if your child does not meet the definition of an "American Indian child" outlined in the law. Other federal and state laws, however, may provide other protections, including relative placement provisions and the opportunity to be heard in a case review hearing.

State compliance with the ICWA requirements

A state Department of Child Safety worker must make several considerations when managing an ICWA case; such as:

1. Offering active efforts to the family (see What is meant by "active efforts")
2. Identifying a placement that fits under the ICWA preference requirement
3. Notifying the child's tribe and the child's parents of child custody proceedings
4. Working sincerely with the child's tribe and the child's parents in the child welfare system

Your caseworker should be able to explain your rights under ICWA and any other case actions in a manner that is easy for you to understand.

Who should you contact if you feel that your rights under ICWA are not being followed?

You should contact an attorney, legal services or the child's tribe when you feel ICWA is not being applied correctly in your child's case. The court may order different services or a different placement if it is determined that ICWA is not being applied correctly.

What is meant by "active efforts"? What considerations should be made in an ICWA case?

"Active efforts" are assisting a parent or an American Indian custodian get help at an early stage of case development and provide an opportunity for the child's tribe to participate in all case planning decisions.

States are required to provide active efforts to families, and the court will be asked to decide whether active efforts have been made. The definition of "active efforts" is left open by the ICWA to allow individual case decision be supported by state a caseworker's thorough effort to make contact with the child's tribe, extended family and find and use suitable resources that would help in keeping the family together.

ICWA directs the state to make active efforts in every ICWA case in two areas:

Provide services to the family to prevent removal of an American Indian child from his or her parent or American Indian custodian;

Reunify an American Indian child with his or her parent or American Indian custodian after removal.

Read the entire federal ICWA policy.

 

Support Document: Navajo Nation IGA 2019