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Indian Child Welfare Act (ICWA)
Section 3.2
Judicial Officers Should Assess Early whether the Indian Child Welfare Act (ICWA) Applies
The Indian Child Welfare Act (ICWA) is a federal law that established minimum standards relating to the treatment and placement of Indian children. Congress passed ICWA after finding “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.”1 ICWA protects Indian children’s interests by, among other things, ensuring that when an out of home placement is deemed necessary, the setting chosen reflects Indian values and culture.2
An alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.1
Although ICWA does not cover most juvenile delinquency proceedings, ICWA does apply to status offense cases.3 There are several critical junctures during a status offense case when courts should consider ICWA and its provisions, such as at the beginning of the case, when the child is placed out of home and when the child and family are offered services. If an Indian child is petitioned to court as an alleged status offender, the court should notify the tribe of the proceedings. This will allow the tribe to help identify culturally appropriate services and assistance for the child and family. If the child is detained, ICWA’s placement preference standards must apply, unless the placement qualifies as an “emergency removal,” in which case the placement must end as soon as the emergency subsides.4
Many of ICWA’s most relevant provisions for status offense cases relate to when a youth is placed out of his or her home. ICWA gives tribes exclusive jurisdiction over custody proceedings involving Indian children living within their reservation or who are wards of the tribal court. For all other covered proceedings, the state should transfer jurisdiction to the tribe at the request of a parent, the tribe or the child’s custodian absent good cause or objection by a parent or child of a certain age.5 ICWA requires that any Indian child placed in foster care must be placed in “the least restrictive setting which most approximates a family and in which his special needs, if any, may be met.”6 The child should be placed reasonably close to his home and the law enumerates a series of placement preferences that must be followed unless the child’s tribe establishes a different order of preference. Prior to a foster care placement, the placing agency must prove that efforts were made to provide “remedial services and rehabilitative programs designed to prevent the breakup of the Indian family” and that those efforts were unsuccessful.7 If, however, an Indian child is held in contempt of court for a probation violation, ICWA does not apply if the contempt order results in an out-of-home placement, as ICWA does not consider contempt to be part of the original status offense case.8 Still, courts should refrain from placing Indian youth in secure confinement for a status offense. For more information on the damaging effects of detention and the need to eliminate the valid court order exception, see Section 3.8 and Section 4.10 respectively.
1 25 U.S.C. Section 1901.
2 25 U.S.C. Section 1904; see also The Indian Child Welfare Act and Advocacy for Status Offenders. (2010). Washington, D.C.: American Bar Association Center on Children and the Law. Available at: http://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/ICWA_factsheet.authcheckdam.pdf.
3 Bureau of Indian Affairs. (1979). Guidelines for State Courts; Indian Child Custody Proceedings. Department of Interior, Guideline B-3. Available at: http://www.nicwa.org/administrative_regulations/icwa/ICWA_guidelines.pdf.
4 Indian Child Welfare Act of 1978: A Court Resource Guide. (July 2012). ICWA Special Committee, Michigan Court Administrative Office. Available at http://courts.mi.gov/Administration/SCAO/Resources/Documents/Publications/Manuals/cws/ICWACResourceGuide.pdf.
5 25 U.S.C.A. § 1911.
6 25 U.S.C. Section 1915.
7 25 U.S.C. §§ 1912 –1915; 44 Fed. Reg. 67584.
8 Indian Child Welfare Act of 1978: A Court Resource Guide. (July 2012). ICWA Special Committee, Michigan Court Administrative Office. Available at http://courts.mi.gov/Administration/SCAO/Resources/Documents/Publications/Manuals/cws/ICWACResourceGuide.pdf.