12.3 State Implementation and Compliance with ICWA

The Indian Child Welfare Act (ICWA) sets crucial standards for state courts handling cases involving Native American children. It aims to protect tribal connections and cultural heritage while ensuring the best interests of Indian children in custody proceedings.

States must comply with ICWA's requirements, including notice to tribes, active efforts to prevent family breakup, and placement preferences. Many states have developed checklists to ensure proper implementation, addressing issues like jurisdiction, tribal engagement, and expert testimony.

ICWA Requirements in State Court Proceedings

Key Provisions of the Indian Child Welfare Act (ICWA)

• Establishes minimum federal standards for removal of Indian children from their families requires placement of such children in foster or adoptive homes that reflect the unique values of Indian culture
• Provides for assistance to Indian tribes in the operation of child and family service programs
• Requires states to provide active efforts to prevent the breakup of the Indian family before out-of-home placement of an Indian child
• Mandates that testimony from a qualified expert witness is required in ICWA proceedings who is qualified to speak to the prevailing social and cultural standards of the Indian child's tribe
• Requires notice to the child's tribe and Indian custodian for involuntary proceedings (foster care placement or termination of parental rights)

Best Interests of the Indian Child and ICWA Compliance

• ICWA requires consideration of the best interests of the Indian child in all proceedings
  • Includes the child's ties to their tribe, extended family, and cultural heritage
• Courts must make findings on the record regarding active efforts, qualified expert witness testimony, and placement preferences to ensure compliance with ICWA
• Many states have developed ICWA compliance checklists for courts and child welfare agencies to ensure all requirements are met in each case
  • Checklists typically include items such as notice, active efforts, qualified expert witness testimony, placement preferences, and tribal engagement

Jurisdiction and Transfer

Tribal Jurisdiction and Transfer to Tribal Court

• ICWA recognizes tribes' exclusive jurisdiction over child custody proceedings involving Indian children who reside or are domiciled on the reservation
• In cases where the Indian child is not residing or domiciled on the reservation, ICWA provides for concurrent jurisdiction between state and tribal courts
• Upon petition of either parent, the Indian custodian, or the child's tribe, state court proceedings for foster care placement or termination of parental rights must be transferred to tribal court
  • Transfer can be declined by the tribal court or either parent can object to the transfer

State Court Proceedings and State-Tribal Agreements

• When an Indian child is involved in state court proceedings, ICWA requirements must be followed, including notice, active efforts, qualified expert witness testimony, and placement preferences
• States and tribes can enter into agreements regarding jurisdiction, transfer of cases, and provision of services
  • Agreements can address issues such as investigation of reports of abuse or neglect, provision of active efforts, and placement of Indian children
• State-tribal agreements can provide for joint jurisdiction, transfer of cases from state court to tribal court, and sharing of resources and services

Placement and Parental Rights

ICWA Placement Preferences and Good Cause to Deviate

• ICWA establishes placement preferences for foster care, pre-adoptive, and adoptive placements of Indian children
  • First preference is with a member of the child's extended family, followed by other members of the child's tribe, then other Indian families
• The child's tribe can establish a different order of preference by resolution
• Good cause to deviate from the placement preferences must be proven by clear and convincing evidence
  • Factors can include request of the parent or child, extraordinary physical or emotional needs of the child, and unavailability of suitable families after a diligent search

Voluntary Proceedings and Termination of Parental Rights

• In voluntary proceedings (such as voluntary foster care placement or voluntary relinquishment of parental rights), ICWA requires the consent of the parent or Indian custodian to be in writing and recorded before a judge
  • The judge must certify that the terms and consequences of the consent were fully explained and understood
• Consent to voluntary termination of parental rights can be withdrawn at any time prior to the final decree of termination or adoption
• In involuntary proceedings, ICWA requires evidence beyond a reasonable doubt, including testimony of a qualified expert witness, to terminate parental rights
  • Active efforts to prevent the breakup of the Indian family must be proven prior to termination of parental rights