Indian Child Welfare Act (ICWA)
What is ICWA?
The Indian Child Welfare Act (ICWA) is a federal law that passed in 1978. The law was implemented due to the often unwarranted number of Indian children being removed from their homes by both private and public agencies and placed in non-Indian homes, institutions and adoptive homes. ICWA sets minimum standards that must be met when Indian children are removed from their families and when placed in foster or adoptive homes.
Does it apply to my case?
ICWA applies to state custody hearings for Indian children involuntarily removed from their Indian parent or guardian within the following guidelines:
- An Indian child who is unmarried and under age 18 AND a member of a Federally Recognized Tribe; or
- Eligible for membership in a Federally Recognized Tribe and is the biological child of a member of a Federally Recognized Tribe.
Note: ICWA does not apply in divorce hearings, juvenile delinquency hearings or Tribal court jurisdiction cases.
What does this mean for me and my case?
In an ICWA case, the parents have certain rights, including:
- Involvement in decisions made regarding the child;
- Participation in service decisions; and
- Right to request transfer to Tribal jurisdiction.
Ask your attorney, case specialist, and tribal worker if ICWA is being followed and how it is being applied to your case specifically.
- Case specialists must use Active Efforts when working an ICWA case. Active Efforts are efforts intended to allow a child to remain with their family or reunite the child with their family.
- The court must make a determination if Active Efforts are being made in the case. These efforts are above what is considered “reasonable efforts;” for example, assisting you with services by not only providing information about the service, but also actively assisting in getting the services in place.
Other considerations under ICWA
- Identifying ICWA compliant placements for Indian children in OKDHS custody. This means placements that maintain the child’s connection to family and tribe. Preference for placement is given to the child’s family. If family is not available, then tribal members from the child’s tribe (or secondly, other tribes) would be considered.
- Indian Tribes can intervene in any state child custody ICWA case. Whether or not the Tribes may choose to intervene, the case must still be handled as an ICWA case and parent’s rights under ICWA remain intact.
If you are a parent in an ICWA case, there are many resources for you to access for more information.