Indian Child Welfare (ICWA)

ICWA is a federal law that seeks to keep American Indian children with American Indian families. The Indian Child Welfare Act was enacted to discourage the separation of Indian children from their families and tribes through adoption or foster care placement to non-Indian homes, 25 U.S.C. § 1901. Congress passed ICWA in 1978 in response to the alarmingly high number of Indian children being removed from their homes by both public and private agencies. The intent of Congress under ICWA was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902).

ICWA sets federal requirements that apply to state child custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe.

Below are just a few answers to questions you may have.

What is the Indian Child Welfare Act? 
The Indian Child Welfare Act (ICWA) is a federal law which regulates placement proceedings involving Indian children. If your child is a member of a tribe or eligible for membership in a tribe, your family has the right to protection under the ICWA. These rights apply to any child protective case, adoption, guardianships, termination of parental rights action, runaway/truancy matter, or voluntary placement of your children.

When was this law passed?
The ICWA was created in 1978 by the federal government in order to re-establish tribal authority over the adoption of Native American children. The goal of the act when it passed in 1978 was to strengthen and preserve Native American families and culture.

Why was this law passed? 
Before the ICWA was passed, 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, the ICWA sets minimum standards for the removal of Indian children from their homes.

Who does it apply to? 
The law applies to Native American children who are unmarried and under age eighteen. The child must be either a member of a federally recognized Indian tribe or must be eligible for membership in a federally recognized Indian tribe.

What does the law do? 
The 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. It requires testimony from expert witnesses who are familiar with Indian culture before a child can be removed from his/her home. If a child is removed, either for foster care or adoption, the law requires that Indian children be placed with extended family members, other tribal members, or other Indian families.

If a child is not living on the reservation does the ICWA still apply?
Yes. The ICWA has a notice requirement. This means that if a state takes a child into custody, it must give notice to the child’s tribe, wherever the child may be in the U.S.

Does the act apply to a couple getting a divorce? 
No.

What if a parent allowed someone else to become a guardian of their child and later changes their mind?
The ICWA provides that an Indian parent always has the right to revoke a guardianship.

When Does ICWA Apply?
ICWA applies to child custody cases where an Indian child is being taken away from a parent or Indian custodian, or where parental rights are being “terminated” (ended). These include:

• Foster care “placements” (placing a child in the custody of foster parents)
• Child Protective Services (CPS) investigations or child removals
• Guardianship (in juvenile court and probate court) and adoptions (in juvenile court and family court)
• Certain juvenile delinquency cases (for example, truancy cases)

Who decides if I am a member of the tribe?
The law does not apply a specific blood quantum as the criteria for membership. It leaves it up to each Native American tribe to make such determinations on their own.