The Indian Child Welfare Act (ICWA) is a federal law which regulates placement proceedings involving Indian children. If your child is a member of a tribe or eligible for membership in a tribe, your family has the right to protection under the ICWA. These rights apply to any child protective case, adoption, guardianships, termination of parental rights action, runaway/truancy matter, or voluntary placement of your children.
When was this law passed?
The ICWA was created in 1978 by the federal government in order to re-establish tribal authority over the adoption of Native American children. The goal of the act when it passed in 1978 was to strengthen and preserve Native American families and culture.
Why was this law passed?
Before the ICWA was passed, a very high percentage of Indian families were broken up because non-tribal agencies removed children from their homes. One reason for the high removal rate was because state officials did not understand or accept Indian culture. Today, the ICWA sets minimum standards for the removal of Indian children from their homes.
Who does it apply to?
The law applies to Native American children who are unmarried and under age eighteen. The child must be either a member of a federally recognized Indian tribe or must be eligible for membership in a federally recognized Indian tribe.
What does the law do?
The ICWA requires that placement cases involving Indian children be heard in tribal courts if possible, and permits a child’s tribe to be involved in state court proceedings. It requires testimony from expert witnesses who are familiar with Indian culture before a child can be removed from his/her home. If a child is removed, either for foster care or adoption, the law requires that Indian children be placed with extended family members, other tribal members, or other Indian families.
What if a child is not living on the reservation does the ICWA still apply?
Yes. The ICWA has a notice requirement. This means that if a state takes a child into custody, it must give notice to the child’s tribe, wherever the child may be in the U.S.
Does the act apply to a couple getting a divorce?
No.
What if a parent allowed someone else to become a guardian of their child and later changes their mind?
The ICWA provides that an Indian parent always has the right to revoke a guardianship.
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