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WashingtonLawHelp.orgWashington LawHelp

Minor Guardianship of Native American Children

Authored By: Northwest Justice Project LSC Funded

When someone who isn't a parent wants to get legal custody or guardianship of Indian children, special laws and procedures apply. #4416EN

Contents

Read Online

Part 1. Basic Information

Part 2. Jurisdiction

Part 3. Parents

Part 4. Non-parents

Part 5. Where can I learn more?

 

  • Read this only if you are involved in or thinking about filing a minor guardianship case in the state of Washington.

 

Part 1. Basic Information

 

What is the Indian Child Welfare Act (ICWA)?

It is a federal law. It has strict standards all state courts must follow in cases involving custody of an Indian child.

*ICWA does not apply to custody actions between the child's parents, such as divorce, establishing parentage, or modifying (changing) custody orders or parenting plans.

To learn more, read our publication on the Indian Child Welfare Act.

 

Who is an Indian child?

The ICWA defines an Indian child as an unmarried person under age 18 who is one of these:

  • a member of an Indian tribe

  • eligible to be a member of a tribe and the biological child of a tribal member

*"Indian" here includes members and those eligible to be members of Alaska Native tribes. It does not include members of non-federally recognized tribes or Canadian First Nations.

Washington State has its own version of the ICWA. Its definition of an Indian child also includes anyone who may be an Indian child.

Because of these laws, you must investigate thoroughly any tribal relative connections. It is not enough to say that the child and/or parents are not officially enrolled with a tribe.

 

Who decides who is an Indian child?

Only the tribe has the right to determine who is a member. If someone believes the child may be an Indian child, the person filing the case must notify any tribes with which the child has connections.

 

Do tribal courts have to apply the ICWA?

ICWA does not apply to tribal courts. However, all courts of the United States, including tribal courts, must give full faith and credit to (fully honor) orders of other courts that involve custody of Indian children. This includes orders from other tribal courts.

Most tribes have child custody laws governing who may seek custody or visitation rights with tribal children. To get a copy of a tribal code, get in touch with the tribe directly. You can also find some tribal codes online using the State Tribal Directory.

 

The ICWA applies to the children. What now?

You must learn the ICWA's special procedures and requirements. They include these:

*An Indian custodian is an Indian person who has legal or physical custody of an Indian child.

  • The person filing the case must show there were active efforts to provide services and programs to the children's parents to address any problems that interfere with their ability to parent. The person must show these efforts did not correct the parenting problems.

  • The person who filed the case must give clear and convincing evidence, including testimony from expert witnesses, that remaining with the parent will probably cause the children serious emotional or physical damage. RCW 13.38.130(4).

To learn more about ICWA and its requirements, read our publication on the ICWA.

 

Part 2. Jurisdiction

 

What is jurisdiction?

It is a court's power or authority to decide a case. If a court does not have jurisdiction to hear your guardianship case, it cannot make an order in the case.

Jurisdiction is especially important in guardianship cases involving Indian children. A non-parent who wants a court order giving them custody of Indian children might need to file a case in tribal court, not state court. It depends on the facts.  

 

The children live on the reservation. Should the case be in state court or tribal court?

It should be in tribal court. Under the ICWA, only tribal courts can hear cases involving custody of Indian children who live on Indian reservations. 25 U.S.C. 1911(a); RCW 13.38.060.

 

The children live off the reservation. Where does the case belong?

It depends.

The state court may hear a case if the Indian children live off the reservation. If the case is filed in state court, the case must be transferred (moved) to tribal court unless a parent objects (says they do not want the move to happen) or the tribe declines (turns down) jurisdiction.

If the case is in state court, the ICWA applies. Read our publication on the ICWA to learn more.

 

Part 3. Parents

 

Someone has threatened to get custody of my children. How will I know they have done it?

If they file the case in state court, under the ICWA they must notify all of these:

  • You (the parents)

  • the child's tribe

  • anyone with legal or temporary custody

*Even if ICWA does not apply, they must still notify the child if the child is at least age 12. They must also notify the parents, any guardian or legal custodian of the child, any adult providing primary care for the child now or recently, and each grandparent and known adult sibling of the child. RCW 11.130.195.

 

I have received guardianship papers for my children. Do I need a lawyer?

  • You may be able to ask the court to appoint a lawyer to represent you.

  • If your children are "Indian children", ICWA applies to the case, and you have the right to have a lawyer appointed to represent you. RCW 13.38.110. You should give the court proof of your low income and ask the court to appoint you a lawyer.

  • If your children do not meet the definition of "Indian children", ICWA does not apply to your case. You can still ask the court to appoint you a lawyer under the state guardianship law.

  • In either situation, you can use If You are a Parent in a Minor Guardianship Case, You can Ask for a Lawyer.

 

Someone filed in state court for guardianship of my Indian children. My children and I live off the reservation. Can I ask our tribal court to hear the case?

Yes. If the Indian children do not live on the reservation, any of these can ask to transfer the case to the tribal court of the children's tribe:

  • A parent

  • The children's Indian custodian

  • The tribe

  • A child who is at least age twelve

  • The state court must transfer the case to the jurisdiction of the child's tribe, unless there is good cause not to, or a parent objects to the transfer. 25 U.S.C. § 1911(b); RCW 13.38.080.

*A tribal court may not have a guardianship procedure. It should still be able to decide custody of Indian children. 

 

Do I have to ask in writing to have the case transferred to tribal court?

No. You can also say so verbally on the record during a hearing.

Our tribe is in another state. Can the Washington state court transfer the case to our tribal court?

  • Yes.

I lost custody of my Indian children in a non-parent custody case before 2021. That case is closed. How do I get my children back?

 

Part 4. Non-parents

 

I want to file for guardianship of an Indian child. Do I need a lawyer?

Maybe, at least for advice. Following the ICWA's requirements is critical. If you do not, any orders the court makes may be invalid (no good). Make sure you understand the ICWA's requirements before filing. Ask for legal advice if you are unsure.

 

How do I file for minor guardianship in Washington State?

Read the New Minor Guardianship Law. Use our File a Minor Guardianship Petition packet. If you need a court order right away, use our File an Emergency Minor Guardianship Petition packet first or at the same time as the other filing packet.

The packets do not say much about the ICWA filing requirements. If the children are Native American and may qualify as Indian children, you should do other research and/or see a lawyer.

Before choosing to try to get guardianship, you should get to know:

  • The complex legal issues

  • Paperwork and notice requirements

  • The proof (evidence) you must give the judge

  • What could happen if you make a mistake in the process

*You should at least get advice from a family law lawyer knowledgeable about the ICWA before going to court.

 

Part 5. Where can I learn more?

 

Visit these:

Washington State's Indian Child Welfare Act mirrors the ICWA. It also lists the steps needed to meet the requirements in Indian child guardianship cases.

Get Legal Help

Visit Northwest Justice Project to find out how to get legal help. 

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Last Review and Update: Feb 25, 2021