12.2 Key Provisions and Requirements of ICWA

The Indian Child Welfare Act (ICWA) sets crucial rules for handling cases involving Native American children. It gives tribes a say in custody proceedings and establishes preferences for placing kids with family or tribal members.

ICWA aims to keep Native families together and preserve tribal cultures. It requires active efforts to prevent family breakups, expert witnesses in court, and strict notice rules to protect tribal rights in child welfare cases.

Jurisdiction and Transfer

ICWA Jurisdiction and Tribal Involvement

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• Indian Child Welfare Act (ICWA) establishes exclusive tribal jurisdiction over child custody proceedings involving an Indian child who resides or is domiciled on the reservation
• Tribal jurisdiction applies to Indian children living off the reservation if the child is a ward of the tribal court or if the tribe has concurrent jurisdiction under state law
• Tribes have the right to intervene at any point in state court proceedings for the foster care placement of, or termination of parental rights to, an Indian child
• If the tribe does not have exclusive jurisdiction, they may request a transfer of the case to tribal court
• State courts must transfer the case to tribal court upon request, absent good cause to deny the transfer or objection by either parent

Denying Transfer and Invalidating State Actions

• Good cause to deny transfer of a case to tribal court includes situations where the proceeding is at an advanced stage, the Indian child is over 12 years old and objects to the transfer, or the evidence necessary to decide the case cannot be presented in tribal court without undue hardship
• If the state court improperly removes an Indian child or denies transfer to tribal court, the tribe may petition to invalidate the state court's actions
• Invalidation of state court actions applies to foster care placement or termination of parental rights that violate ICWA's jurisdiction, notice, or placement preference provisions

Placement and Termination

ICWA Placement Preferences

• ICWA establishes placement preferences for foster care, pre-adoptive, and adoptive placements of Indian children
• The order of preference for foster care or pre-adoptive placements is: 1) a member of the Indian child's extended family, 2) a foster home licensed or approved by the tribe, 3) an Indian foster home licensed by a non-Indian authority, or 4) an institution approved by the tribe or operated by an Indian organization
• For adoptive placements, the order of preference is: 1) a member of the child's extended family, 2) other members of the Indian child's tribe, or 3) other Indian families
• The tribe may establish a different order of preference by resolution, which must be followed as long as it is still the least restrictive setting appropriate to the child's needs

Termination of Parental Rights and Voluntary Proceedings

• To terminate parental rights to an Indian child, the court must find evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child
• For voluntary foster care placements or termination of parental rights, the consent of the parent or Indian custodian must be executed in writing before a judge and accompanied by a certificate that the terms and consequences were fully explained and understood
• The parent or Indian custodian may withdraw consent to a voluntary foster care placement at any time, and the child must be returned
• In a voluntary proceeding for termination of parental rights or adoptive placement, the parent may withdraw consent for any reason prior to the final decree, and the child must be returned

Best Interests of the Indian Child

• ICWA's placement preferences and other provisions aim to protect the best interests of Indian children and promote the stability and security of Indian tribes and families
• The best interests of the Indian child must be determined in accordance with the standards of the Indian community and may include consideration of the child's tribal membership rights, cultural and social standards, and eligibility for tribal benefits

Key Definitions and Requirements

Indian Child and Indian Custodian

• An "Indian child" is defined as any unmarried person under 18 who is either a member of an Indian tribe or eligible for membership and the biological child of a member
• An "Indian custodian" is any Indian person who has legal custody of an Indian child under tribal law or custom or under state law, or to whom temporary physical care, custody, and control has been transferred by the parent

Active Efforts and Qualified Expert Witnesses

• Before placing an Indian child in foster care or terminating parental rights, the court must be satisfied that "active efforts" have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family
• Active efforts must be documented in detail and must involve assisting the parent or Indian custodian through the steps of a case plan, accessing or developing the resources necessary to satisfy the plan, and offering alternative culturally appropriate services
• The court must hear testimony from one or more "qualified expert witnesses" to determine whether continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child
• A qualified expert witness should be a member of the child's tribe who is recognized by the tribal community as knowledgeable in tribal customs related to family organization and childrearing practices, or a professional with substantial experience and expertise in the delivery of child and family services to Indians

ICWA Notice Requirements

• When a state court knows or has reason to know that an Indian child is involved in a foster care placement or termination of parental rights proceeding, the party seeking the action must notify the child's parent, Indian custodian, and tribe by registered mail with return receipt requested
• The notice must inform the recipients of their right to intervene in the proceeding, petition for transfer to tribal court, and be granted additional time to prepare for the proceeding
• If the identity or location of the parent, Indian custodian, or tribe cannot be determined, notice must be given to the Bureau of Indian Affairs, which then has 15 days to provide notice to the parent, custodian, and tribe