Legal Definitions - ICWA

ICWA stands for the Indian Child Welfare Act.

The Indian Child Welfare Act (ICWA) is a United States federal law passed in 1978. Its primary purpose is to protect the best interests of Native American children and to promote the stability and security of Native American families and tribes. Historically, Native American children were often removed from their families and communities by state agencies and placed into non-Native homes, leading to significant cultural disruption and loss. ICWA was enacted to address this issue by establishing federal standards for the removal and placement of Native American children in state child custody proceedings.

Key provisions of ICWA include:

• Requiring state courts to notify the child's tribe in child custody proceedings involving Native American children.
• Giving Native American tribes jurisdiction over child custody proceedings involving Native American children who reside or are domiciled on their reservation.
• Establishing placement preferences for Native American children, prioritizing placement with extended family members, other members of the child's tribe, or other Native American families, before considering non-Native placements.
• Requiring "active efforts" to prevent the breakup of Native American families, which goes beyond the "reasonable efforts" typically required in other child welfare cases.

Here are some examples of how ICWA applies:

• Example 1: Foster Care Placement

  A state child protective services agency investigates a report of neglect involving a five-year-old child whose mother is an enrolled member of the Navajo Nation. If the state decides that the child needs to be removed from the home, ICWA mandates that the Navajo Nation be notified of the proceedings. The Act would then require the state agency to make "active efforts" to keep the family together, such as providing culturally appropriate parenting classes or substance abuse treatment programs. If placement outside the home is necessary, ICWA's preferences would guide the decision, prioritizing placement with the child's grandparents (extended family), another Navajo family, or another Native American family, before considering a non-Native foster home.

  This example illustrates ICWA's requirement for tribal notification, the "active efforts" standard, and the placement preferences designed to keep Native American children connected to their families and culture.

• Example 2: Adoption Proceedings

  A non-Native couple wishes to adopt an infant whose biological parents are both members of the Cherokee Nation. Even if the biological parents consent to the adoption, ICWA requires that the Cherokee Nation be formally notified of the adoption proceedings. The tribe would have the right to intervene in the case and could propose alternative placements within the tribe or with extended family members, in accordance with ICWA's placement preferences. The court would need to ensure that the adoption adheres to ICWA's standards, including verifying that the biological parents' consent was given freely and knowingly, and that active efforts were made to find a placement within the child's tribal community.

  This example demonstrates how ICWA impacts adoption cases, ensuring tribal involvement and adherence to placement preferences even when biological parents consent to a non-Native adoption, aiming to preserve the child's cultural heritage.

• Example 3: Termination of Parental Rights

  A state agency files a petition to terminate the parental rights of a father who is an enrolled member of the Oglala Sioux Tribe, due to chronic substance abuse issues. Under ICWA, the Oglala Sioux Tribe must be notified of the proceedings and has the right to intervene. Furthermore, the state must provide evidence that "active efforts" were made to prevent the breakup of the family, such as offering culturally sensitive rehabilitation programs or family counseling, and that these efforts were unsuccessful. The standard of proof for terminating parental rights under ICWA is also higher than in non-ICWA cases, requiring proof beyond a reasonable doubt that continued custody by the parent is likely to result in serious emotional or physical damage to the child.

  This example highlights ICWA's elevated standards for tribal notification, "active efforts," and the higher burden of proof required for terminating parental rights, all designed to protect Native American families from unwarranted separation.