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Indian Child Welfare Act

Authored By: Northwest Justice Project - CLEAR Intake Line LSC Funded

The Indian Child Welfare Act (ICWA) is a federal law that creates strict standards for state courts to follow in Indian child custody proceedings. The ICWA declares "the policy of this Nation is to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families."

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What is the Indian Child Welfare Act (ICWA)?

It is a federal law. It has strict standards state courts must follow when custody of an Indian child is at stake.

When does the ICWA apply?

In these kinds of cases:

  • Third party custody cases - a non-parent files for custody

  • Foster care placement

  • Termination of parental rights

  • Adoptions

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

When does the ICWA not apply?

It does not apply to

  • custody fights in divorce cases

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

  • tribal court proceedings

*Only tribal law applies in tribal court proceedings.

Who is an “Indian child” under the ICWA?

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

  • A member of an Indian tribe.

  • Eligible for membership in an Indian tribe and the biological child of a tribal member.

*“Indian” here includes Alaska Natives.

Washington State’s definition can also include

  • Canadian Indians

  • Anyone considered Indian by a federally OR non-federally recognized tribe OR an urban Indian/Alaskan Native community organization

Will tribal court or state court hear my ICWA case?

It depends.

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

*“Domicile” means where a person lives and plans to stay.  A child’s domicile is generally the same as the parents’, even if the child has never been there.  The law may consider an Indian child’s reservation their home in some cases.

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

  • There is good cause not to.

  • A parent objects.

How do I find out there is a custody case in state court?

When a state court case involves an Indian child, the petitioning party must notify all of these:

  • parents

  • the child’s tribe

  • anyone with legal or temporary custody

I am an Indian parent or custodian. What are my rights under the ICWA?

The state court must make sure these happen:

  • Active efforts to prevent the breakup of the Indian family.

  • Preference for out-of-home placements goes first to extended family, Indian or non-Indian, then to tribal and other Indian homes.

The ICWA also sets standards of evidence, including testimony by expert witnesses with knowledge of tribal culture that the parent’s custody is likely to result in serious emotional or physical damage to the child. The petitioning party must meet this requirement before a state court may remove an Indian child from their home.

I am an Indian parent facing a non-parental custody case in state court. Can I get help?

If you are very low-income, you should ask the court to

  • appoint you a lawyer

  • order rehabilitative services to prevent the breakup of your family

*If you ask the court to appoint a lawyer and do not get one, contact Northwest Justice Project’s Native American Unit. (See contact info at the end.)

I am an Indian parent. My child is in foster care or up for adoption. Do I have rights under the ICWA?

If you consented 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 if there was fraud or duress (pressure).

If you did not consent to the foster care placement or parental rights termination: See, “What are My Rights under ICWA,” above.

Do tribes have rights under the ICWA?

Yes.  They have the same right to take part in the case as the parents and person or agency seeking to remove the child.

What kind of jurisdiction (authority) do tribal courts have in custody cases? 

Tribal courts have exclusive (sole) jurisdiction of custody of reservation-domiciled Indian children and children who are wards of tribal court. Only tribal courts can make custody decisions about these children.

Tribal courts have concurrent jurisdiction concerning all tribal children, wherever they live. Either tribal or state courts can make custody decisions about these children. There must be “good cause” for the state court to keep the case.

Do state courts have to honor tribal court decisions?  

Yes. State courts must give tribal court proceedings “full faith and credit.” They generally must respect and enforce tribal court rulings.

How does a tribe find out about a custody case in state court involving an Indian child?

The state court must make sure a child’s tribe gets written notice of an Indian child custody proceeding in state court. If the petitioning party cannot identify the child’s tribe, the state court should send notice to the Secretary of Interior. You should receive a copy of the notice. The tribe has the right to get involved in the state court case.

The tribe got notice about the custody case. Now what?

The tribe may

  • Request transfer of the case to tribal court.

  • Advocate for family reunification or other placement.

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

What if I need legal help?

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. 

 

This publication provides general information concerning your rights and responsibilities. It is not intended as a substitute for specific legal advice.
This information is current as of March 2018.

© 2018 Northwest Justice Project — 1-888-201-1014
(Permission for copying and distribution granted to the Alliance for Equal Justice and to individuals for non-commercial use only.)

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Last Review and Update: Mar 20, 2018
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