Legal Definitions - Indian Child Welfare Act (ICWA)

The Indian Child Welfare Act (ICWA) is a federal law enacted 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 disproportionately removed from their homes and placed in non-Native foster or adoptive families, often severing their ties to their cultural heritage and tribal communities.

ICWA establishes specific standards and preferences for how state courts handle child welfare cases involving Native American children. This includes proceedings related to foster care placements, adoptions, and the termination of parental rights. The law prioritizes keeping Native American children connected to their extended families, tribes, and cultural identity by giving tribes a voice in these proceedings and establishing a hierarchy of placement preferences that favor Native American homes.

Here are some examples of how the Indian Child Welfare Act might apply:

• Foster Care Placement: Imagine a situation where a state child protective services agency determines that a 6-year-old boy, who is an enrolled member of the Cherokee Nation, needs to be temporarily removed from his parents due to safety concerns. Under ICWA, the state agency is legally required to notify the Cherokee Nation of the proceedings. The Cherokee Nation then has the right to intervene and participate in the case. Furthermore, ICWA establishes a preference for placing the boy with his extended family (such as a grandparent or aunt), or failing that, with another Cherokee family, or a Native American family from another tribe, before considering a non-Native foster home. This ensures the child maintains his cultural connections even while in temporary care.

• Adoption Proceedings: Consider a case where a 2-year-old girl, whose parents are both members of the Standing Rock Sioux Tribe, is legally available for adoption after her parents voluntarily relinquished their parental rights. Before any adoption can be finalized, ICWA mandates that the Standing Rock Sioux Tribe be formally notified and given the opportunity to intervene. The law then sets a specific order of placement preferences: first, with a member of the child's extended family; second, with other members of the child's tribe; third, with other Native American families; and only if no suitable Native American home can be found, with a non-Native family. This framework aims to preserve the child's tribal identity and cultural heritage.

• Termination of Parental Rights: Suppose a state agency is seeking to permanently terminate the parental rights of a mother who is a member of the Hopi Tribe, due to ongoing neglect and an inability to provide a safe home. ICWA imposes a higher standard of proof for terminating parental rights in cases involving Native American children than is typically required under state law. The state must prove "beyond a reasonable doubt" that continued custody by the parent is likely to result in serious emotional or physical damage to the child. Additionally, the state must demonstrate that "active efforts" were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Native American family. These stricter requirements reflect ICWA's fundamental goal of preserving Native American families whenever possible.