Minor Guardianship of Native American Children
Authored By: Northwest Justice Project
When someone who isn't a parent wants to get legal custody or guardianship of Indian children, special laws and procedures apply. #4416EN
- 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
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:
- The person filing the case must file and serve the right notice on the children's Tribe(s) and the parents or Indian custodians. You can get these forms (GDN M 401, GDN M 402, GDN M 403) from the Washington court forms website.
*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?
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
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:
The children's Indian custodian
A child who is at least age twelve
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?
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?
- Read Change a Nonparent Custody Order to Get Your Children Back and talk to a lawyer who is familiar with the ICWA. If you believe the ICWA requirements were not followed in that case, you may be able to ask a court to invalidate (cancel) the custody order.
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
Part 5. Where can I learn more?
Native American Right Fund – "A Practical Guide to the Indian Child Welfare Act" - narf.org/icwa/index.htm
Indian Child Welfare Act Law Center - www.icwlc.org
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
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