Indian Child Welfare Act
Prior to the passage of the Indian Child Welfare Act (ICWA) in 1978, many
states with Indian populations had disproportionate numbers of Indian children
in foster care. The number of children removed and subsequently adopted by
non-Native American families was particularly disturbing to Native American
Tribal communities. Native American Tribes had child rearing practices which
differed significantly from European practices, upon which most social services
practices were based.
Tribal governments, Native American urban communities, and legislators
responded to this National crisis by creating and supporting the passage of
Public Law 95-608, the Federal Indian Child Welfare Act (ICWA). ICWA was passed
to preserve the rights and cultural heritage of Native American children and
their families. The law is precise and very specific regarding the treatment of
Native American families when children are removed, or may be removed, from
"It is in the best interest of the child that the role
of the tribal community in the child's life be protected."
As an advocate, you may be involved in a case with an Indian
child. Your role will not be any different regarding how you interact with the
child. Regardless of a child's ethnicity, your purpose is to do what is in the
best interest of that child. With an Indian child this may include being sure
the child has opportunities to participate in Tribal events. But mostly it
involves making sure the child's needs are being met and that there is a good
permanency plan to help move the child out of dependency as soon as possible.
"To protect the rights of an Indian child as an Indian,
and the rights of the Indian Tribe and community in retaining the child in its
Prior to the passage of the Indian Child Welfare Act, Indian
children were being removed from their homes and placed in foster care at a
rate high above the average. In some states they were put in out-of-home
placement 20 times more often than Caucasian children.
During Senate investigations it was determined that Indian children were not
treated well in the foster care system. The parents and Tribe were not always
notified of court proceedings. But the most damaging effect was the children
were separated from their culture. After aging out of the foster care systems,
these young adults would be returned to their Tribes without knowing how to
interact culturally or socially.
ICWA was written to try to correct these problems.
ICWA established federal policy that an Indian child should
remain in the Indian community.
ICWA restated that federally recognized Indian Tribes are sovereign entities
that have the right to self-govern. While Indian Tribes are subject to federal
laws, they have exclusive jurisdiction over all Indian child custody cases
except divorce and delinquency.
This does not prevent Indian Tribes from waiving jurisdiction and keeping the
child in the state system. In fact, several Tribes do not have the resources
available to give a dependent child the specialized services that may be
required. Tribes may waive their jurisdiction if it is felt it will benefit the
child's development. ICWA also gives the Tribe's preference over placement a
higher priority than what the state system may have laid out. This recognizes
how the Indian culture has a broader sense of a family unit and a vested
interest in making sure the child retains the cultural heritage. The tribal
placement choice allows the Tribe to have direct input into how the Indian
child will ultimately be raised and helps to maintain cultural identity.
The Indian Tribe's right to intervene in the state proceedings does not get
waived. Even if the Tribe earlier passed jurisdiction to the state, they can
later petition to have jurisdiction transferred back. ICWA gives them that
option by going through the Bureau of Indian Affairs and using any agreements
between the Tribe and the state.
Tribal intervention can be as little as being allowed to appear in court and
listen. It can also include the right to discovery, calling witnesses, placing
objections in state court, and can even include the right to veto a decision.
During the Senate hearings many cases came up where the parents or legal
custodians were not informed of the hearings and procedures associated with
their child's case. The guardians were also not always fully informed of their
rights or the consequences of what they were agreeing to.
ICWA addresses these issues by granting the following rights to parents and
- The right to a
- The right to seek transfer of
jurisdiction to the Tribal
- If the parent voluntarily
terminated custody, they can rescind their decision and have the child
returned to them immediately.
Two concerns regarding ICWA have been the delays caused by the notification
requirement, and the difficulty in finding a placement the Indian Tribe will
accept. Both of these concerns should not be considered problems. ICWA explains
what options must be followed for the latter concern, and the former concern
has an easy method to avoid long delays.
The delays due to notification are meant to protect the Indian Tribe by
assuring that they will be informed of any Indian child severance case. But
this should not be a stumbling block to a case. ICWA gives very specific time
lines to be followed during notification. All notification is to be done with
return-receipt mail. This gives proof that there was an attempt to notify
interested parties AND the notification was received. ICWA also allows the
state to notify the Tribe if a parent or guardian cannot be found. ICWA goes
further by allowing notification to be mailed to the Bureau of Indian Affairs
if the Tribe cannot be located. The case can resume ten days after any of the
notifications are received. The only exception is if the parent, custodian, or
Tribe request extra time to prepare for the case. ICWA allows them an
additional 20 days. So the longest a case can be delayed by ICWA would be one
month at the very beginning of the proceedings.
The second complaint addresses an issue created for the benefit of Indian
Tribes. The Indian Tribe has a say in where the child will be placed. This is a
very important option because it allows the Tribe to attempt to place the child
in a home that will help the child learn and develop within the Indian culture.
Indian culture relies on strong family ties. As a result, foster care placement
is allowed only when evidence is clear and convincing that placement at home
will cause serious emotional or physical damage to the child. The evidence must
also include expert testimony stating such damage will occur. An expert can be
any of the following (in order of preference):
- Tribal member knowledgeable
in family organization and child rearing practices.
- Lay expert with experience in
Indian child and family services and knowledge of the social and cultural
standards of the Tribe.
- Professional person with
substantial education and experience working with Indian families and
familiar with Indian cultural standards, particularly those of the child's
- A professional person.
If foster care is required, the choices for placement are to
be used in the following order:
- A member of the extended
- A Tribally-approved and
licensed foster home
- A state licensed Indian
- Other Tribally-approved
The primary role of a Court Appointed Special Advocate or Foster Care Review
Board member does not change just because they are working with an Indian
child. The advocate should still consider what is best for the child. Children
in the court system need someone to watch out for them and be sure they are
getting the proper treatment and support. The CASA and FCRB member will need to
keep in mind one of the supports that Indian children may need is to be
culturally involved with their nation.
The advocates will also need to consider that an Indian Tribe may not be
inclined to lose their child to the state system. The Tribe can be very resistant
to allowing complete severance. This means that long-term foster care can be a
preferred option instead of adoption to the Tribe. This may not be the best
option for CASA or FCRB, but the Tribe's wishes must be respected because
ultimately the Indian child is a citizen of the Tribal nation.
As far as CASA and FCRB are concerned, an Indian child is still a child
traversing the dependency process. Be aware of the cultural differences that
may be involved with the case. A CASA and FCRB member's role is to help the
child and learn what is best for the child. ICWA only insures that the
volunteers understand the wishes of the child's nation and why those wishes are
To read the ICWA click on the reference link below:
The following list contains the names of 21 current federally recognized Indian
tribes in Arizona
from information provided by the United States Bureau of Indian Affairs. The
links will provide you with history of the tribes, contact information,
government and council members and events.