How does the Indian Child Welfare Act affect me?

You should read this if you have questions about how the Indian Child Welfare Act might affect you or your family. It could affect you if you are:

• the parent of an Indian child

• an Indian parent or custodian

• an Indian child (or teen) yourself

• a non-parent seeking custody, foster care (including pre-adoptive placement), adoption, or guardianship of an Indian child in a child welfare, adoption, or guardianship proceeding

It is a federal law. It has strict standards state courts must follow when custody of an Indian child is involved. Washington's RCW 13.38 is a second version of the law that helps give additional state specific guidance.

ICWA's goal is to keep Indian families together and to keep Indian children connected to their community and culture. ICWA also restates the inherent rights of tribal nations to be involved in child welfare matters involving their members. When ICWA applies, child welfare must take extra steps to keep Indian families together, to support Indian parents and to involve tribes.

In these kinds of cases:

• Cases where a non-parent has filed for custody, foster care, or guardianship of the child

• Foster care placement including pre-adoptive placement

• Termination (ending) of parental rights

• Adoptions

• Behavior that would not be a crime if an adult committed it (called "status" offenses), such as drinking alcohol or missing school, when the court is placing an Indian child outside their home

It does not apply to:

• custody cases between parents  (for example, as part of a divorce)

• placement based on an act which would be criminal if an adult committed it

• in some tribal courts, unless the tribe has adopted ICWA in their Law and Order Codes. Colville, Lummi, Makah, Nisqually, Sauk-Suiattle, Skokomish, Squaxin Island, Swinomish, and Tulalip are some of the tribes in WA that have adopted ICWA type provisions. The Native American Rights Fund has a list of tribes that have ICWA type provisions.

Any unmarried person who is under 18 and one of these:

• A member of a federally recognized tribe or Alaska Native tribe, or Alaska Native village.

• Eligible to be a member of a federally recognized tribe or Alaska Native village and is also the biological child of a tribal member.

• The person who started the child custody (the "Petitioner") must make a "good faith effort" at finding out if the child is an Indian child. They should ask all of these people about any known or potential tribal affiliation for the child:

• The child's parents

• Any person who has a caretaking connection to the child

• Any tribe the child could be affiliated with based on known parents and grandparents

• Any other person expected to have relevant information about the Indian status or Indian community connections of the child

Enrollment is one way of proving membership for an Indian child for ICWA. If the child is enrolled or eligible for enrollment, the child is a member.

If the child is not enrolled or eligible for enrollment, then the Tribe determines whether the child is a member for the purposes of ICWA. Only a tribe can make a determination of membership. Many tribes will consider whether there is a family on the reservation, other ties to the Tribe, and similar things when determining "membership" of an "Indian child". The Tribal determination is final and based on the Tribe's individual internal policies. Each tribe could be different.

ICWA requires that the standards used to measure the interests of Indian children must be specifically culturally appropriate to that child's Indian or tribal culture. It goes beyond the usual "best interest of the child" standard that is common in non-ICWA child custody proceedings.

It depends.

If an Indian child lives or is "domiciled" within an Indian reservation or is a ward of tribal court, a state court normally must transfer the case to the tribal court.

If the child does not live on a reservation, the state court must transfer the case to the right tribal court, unless one of these is true:

• There is good reason not to.

• A parent objects.

It depends:

• Only tribal courts can make custody decisions about Indian children residing on their reservation and children who are wards of tribal court. 

• If the children are not residing on their reservation, and are not the subject of a current dependency in tribal court, either tribal or state courts can make custody decisions about the children, regardless of where they live. But there must be "good cause" (good reason) for the state court to keep the case.

When a state court case involves an Indian child, the person who started (filed) the case must notify all of these:

• parents

• the child's tribe or any tribes the child could be affiliated with

• anyone with legal or temporary custody

The state court must make sure a child's tribe gets written notice of the case. If the nonparent does not know who the child's tribe is, the state court should send notice to the Secretary of Interior and to all possible tribes known to be connected to the child. The Indian parent should also get a copy of the notice if they are known.

The tribe may:

• Ask the state court to transfer the case to tribal court.

• Ask the court to order services to try to keep the family together.

• Ask the child to be placed somewhere else.

• Ask for a record of any state court placement of a tribal child and proof of efforts made to follow the ICWA placement preferences.

No. Certain parts of ICWA also apply to "voluntary" proceedings like voluntary adoptions. ICWA notice is still required for voluntary proceedings. There are specific procedures for voluntary adoptions and foster care placements that are required by ICWA.

For example, when an Indian parent who voluntary consents to adoption for their Indian child, the tribe also has a right to oppose the biological parent's choice of adoptive or foster parents. The tribe can require ICWA placement preferences for the Indian child that can override both biological parents' placement preferences.

ICWA placement preferences prioritize maintaining connection to family, tribe and tribal culture.

ICWA's placement preferences for adoption (in order of preference) are:

1. A member of the child's extended family

2. Members of the Indian child's tribe

3. Other Indian families

ICWA's placement preferences (in order of preference) for foster care and pre-adoptive placement are:

1. The Indian child's extended family- even extended family who are not members of the Indian child's tribe

2. A foster home licensed, approved, or specified by the Indian child's tribe (as near to the child's home as possible)

3. An Indian foster home licensed or approved by an authorized non-Indian licensing authority (as near to the child's home as possible)

4. Another institution approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs (as near to the child's home as possible)

The state court must make sure these happen:

• You have the right to intervene in- or try to stop- any child custody involving your Indian child. This includes foster care proceedings, pre-adoptive hearings, and parental rights termination hearings.

• You should have received notice of a child custody case filed against you with enough time to respond. You can ask the court for more time preparing for the hearing if you need it. Any tribe the child has membership in should also have received notice.

• You can ask the court to appoint you a lawyer if you can't afford one.

• You have the right to review all documents that have been filed with the court.

• You have the right to "active efforts" to prevent the breakup of your Indian family. This means the goal of everyone should be to keep the Indian family together if possible and in the best interests of the Indian child. This also means that you as the Indian parent should get extra support to help you rehabilitate, get the support you need, and keep your family together. Services should heavily favor parental support, avoid termination, and actively enable reunification.

• You have a right to culturally specific experts. If the court is considering placing the child out of your home, it must decide that the child is likely to experience serious emotional or physical damage in your care. The person that filed the case must give the court testimony from an expert witness, who is familiar with tribal culture, to prove this point. You also may be able to request that a tribal representative be with you at every hearing. You also may be able to ask for an Indian Guardian Ad Litem to speak for your child in court.

• You can ask for ICWA placement preferences. If the court places the child out of your home, preference must go first to extended family (Indian or non-Indian) then to tribal and other Indian homes near the child's home.

• You can ask for a confidential hearing. Any affected tribe and other parties will remain a part of the hearing. But you can ask for a confidential hearing that can help the process stay private from other extended family members and broader community.

• You have a right to strict conditions for any emergency removals or placements that should favor quick reunification of your family once the emergency is over.

• Intensive family/parent rehabilitation services should be favored over child removal for your case.

Yes. If you do not have a lot of money, you should notify the court that your child is Indian and ask the court to:

• appoint you a lawyer at no cost

• order rehabilitative services to prevent the breakup of your family

• If you are a parent in a minor guardianship case, you can ask for a lawyer has more information and forms about what to do if that is your situation.

Yes. If you consented (agreed) to the foster care placement or parental rights termination: Your consent is only valid if you sign it before a judge at least ten days after the child's birth. You can take back your consent any time before the court enters a final order or within two years in certain situations. Talk to a lawyer.

If you did not consent to the foster placement or parental rights termination: Read the section called "I am an Indian parent or custodian. What are my rights under ICWA?." If those things did not happen in your case, you should talk to a lawyer.

Yes, if ICWA applies to the proceeding, you have some rights related to the Indian child. You should have priority for ICWA placement for the child as an Indian family member. Home evaluations for foster care placement for your home should be according to your Indian or tribal standards and customs. You could have additional rights if you are grandparents involved in raising the child immediately prior to when child protection got involved.

Yes. Children and teens have rights under ICWA.

• You have a right to a lawyer that the court will give you and pay for any child custody proceedings that involve you. For foster care and parental termination, you should have a lawyer automatically assigned to you by the court. This lawyer is just for you and is different than your parent's lawyer. Foster Youth: Right to Counsel explains more about how foster youth can get a lawyer. For other types of cases like adoption or guardianship, you might have to show the Judge how having your own lawyer is in your best interest.

• You can ask for your tribe or tribes to get notice from the court if the tribe doesn't know the case is happening.

• You have the right to try to stay in your extended family, in your tribal community and connected to tribal culture.

• You can ask to stay with extended family members even if they are not a member of your tribe.

• You have right to stay connected to Indian culture even when in placement.

• You should be able to ask for placement in adoptive or foster care homes that support the values unique to your tribal culture or community and that are as close to your home as possible.

• If you are in placement, you can ask for tribal involvement in truancy, under-age drinking, curfew, runaway cases, or any other offenses that are related to you being underage. You should be able to ask for a tribal representative to be with you at these hearings.

• You can ask for a Guardian Ad Litem who knows your culture and is familiar with your specific tribal community.

• You can ask to give evidence in the hearings if you are a certain age.

• You can ask for emancipation (or to live on your own) if you are 16 or 17. It can be very hard to meet the requirements for Emancipation. Use Emancipation of Minors to get started.

Yes.  They have the same right to take part in the case as the parents and person or agency seeking to remove the child from the parent(s). Tribes should have a chance to be actively involved in all stages of every type of case and can come to every hearing. Tribes have a right to be involved in all status offense cases involving Indian children who are in placement. Status offenses are charges like truancy, runaway, under-age drinking, curfew and other age-related offenses.

The Northwest Justice Project's Native American Unit (NAU) provides free civil (non-criminal) legal services for people who cannot afford a lawyer in Washington. 

In King County: Call 2-1-1.

All other counties: Call the CLEAR hotline toll-free at 1-888-201-1014, weekdays 9:15 a.m. - 12:15 p.m.