How does the Indian Child Welfare Act affect me

What is the Indian Child Welfare Act (ICWA)?

It is a federal law. It has strict standards state courts must follow when custody of an Indian child is involved. Washington’s RCW 13.38 is a 2nd version of the law that helps give additional state specific guidance. 

ICWA’s goal is to keep Indian families together and to keep Indian children connected to their community and culture. ICWA also restates the inherent rights of tribal nations to be involved in child welfare matters involving their members. When ICWA applies, child welfare must take extra steps to keep Indian families together, to support Indian parents and to involve tribes.

ICWA doesn’t apply to custody actions between the child’s parents, such as divorce, parentage, or changing (modifying) custody orders or parenting plans.

Who does the Indian Child Welfare Act affect?

It could affect you if you are: 

• the parent of an Indian child.
• an Indian parent or custodian. An Indian custodian is an Indian person who has legal or physical custody of an Indian child.
• an Indian child (or teen) yourself.
• a non-parent seeking custody, foster care (including pre-adoptive placement), adoption, or guardianship of an Indian child in a child welfare, adoption, or guardianship proceeding.

ICWA doesn’t apply to a divorce case or parenting plan case between two biological parents. 

When does ICWA apply? 

In these kinds of cases: 

• Cases where a non-parent has filed for custody, foster care, or guardianship of the child
• Foster care placement including pre-adoptive placement
• Termination (ending) of parental rights
• Adoptions
• Status offense cases for Indian children when the court has placed an Indian child outside of their home. Behavior that wouldn’t be a crime if an adult committed it is called a “status” offense. Status offenses are charges like truancy, runaway, under-age drinking, curfew and other age-related offenses.

When does ICWA not apply?

It does not apply to: 

• custody cases between parents (for example, as part of a divorce)
• placement based on an act which would be criminal if an adult committed it
• cases in some tribal courts, unless the tribe has adopted ICWA in their Law and Order Codes. Colville, Lummi, Makah, Nisqually, Sauk-Suiattle, Skokomish, Squaxin Island, Swinomish, and Tulalip are some of the tribes in WA that have adopted ICWA type provisions. The Native American Rights Fund has a list of tribes that have ICWA type provisions.

Who is an “Indian child” under ICWA?

Any unmarried person who is under 18 and one of these: 

• A member of a federally recognized tribe or Alaska Native tribe, or Alaska Native village.
• Eligible to be a member of a federally recognized tribe or Alaska Native village and is also the biological child of a tribal member. 

“Indian” here includes members and those eligible to be members of Alaska Native tribes. It doesn’t include members of non-federally recognized tribes or Canadian First Nations.

The person who started the child custody case (the “Petitioner”) must make a “good faith effort” at finding out if the child is an Indian child. They should ask all these people about any known or potential tribal affiliation for the child:

• The child’s parents
• Any person who has a caretaking connection to the child
• Any tribe the child could be affiliated with based on known parents and grandparents
• Any other person expected to have relevant information about the Indian status or Indian community connections of the child

Washington State has its own version of the ICWA. Its definition of an Indian child also includes anyone who may be an Indian child. Because of these laws, you must investigate thoroughly any tribal relations if you are required to give ICWA notice[DL2]  in your case. It is not enough to say that the child and/or parents aren’t enrolled with a tribe.

Are membership and enrollment in a tribe the same thing?

Enrollment is one way of proving membership for an Indian child for ICWA. If the child is enrolled or eligible for enrollment, the child is a member. 

If the child is not enrolled or eligible for enrollment, then the Tribe determines whether the child is a member for the purposes of ICWA. Only a tribe can make a determination of membership. Many tribes will consider whether there is a family on the reservation, other ties to the Tribe, and similar things when determining “membership” of an “Indian child”. The Tribal determination is final and based on the Tribe's individual internal policies. Each tribe could be different. 

Who decides who is an Indian child?

Only the tribe has the right to determine who is a member. If someone believes the child may be an Indian child, the person filing the case must notify any tribes with which the child has connections or relations.

Do tribal courts have to apply the ICWA to their cases?

ICWA doesn’t apply to tribal courts. However, all courts of the United States, including tribal courts, must give full faith and credit to (fully honor) orders of other courts that involve custody of Indian children. This includes orders from other tribal courts. 

Most tribes have child custody laws governing who may seek custody or visitation rights with tribal children. To get a copy of a tribal code, get in touch with the tribe directly. You can also find some tribal codes online using the State Tribal Directory.

How is the “best interest of the child” standard applied differently to Indian children because of ICWA?

ICWA requires that the standards used to measure the interests of Indian children must be specifically culturally appropriate to that child’s Indian or tribal culture. It goes beyond the usual “best interest of the child” standard that is common in non-ICWA child custody proceedings. 

Does ICWA only apply to cases when child welfare tries to terminate parental rights? (Also called “involuntary proceedings”)

No. Certain parts of ICWA also apply to “voluntary” proceedings like voluntary adoptions. ICWA notice is still required for voluntary proceedings. There are specific procedures for voluntary adoptions and foster care placements that are required by ICWA.

For example, when an Indian parent who voluntary consents to adoption for their Indian child, the tribe also has a right to oppose the biological parent’s choice of adoptive or foster parents. The tribe can require ICWA placement preferences for the Indian child that can override both biological parents’ placement preferences. 

What are ICWA’s placement preferences?

ICWA placement preferences prioritize maintaining connection to family, tribe and tribal culture.

ICWA’s placement preferences for adoption (in order of preference) are:

1. A member of the child’s extended family
2. Members of the Indian child’s tribe
3. Other Indian families

ICWA’s placement preferences (in order of preference) for foster care and pre-adoptive placement are:

1. The Indian child’s extended family- even extended family who aren’t members of the Indian child’s tribe
2. A foster home licensed, approved, or specified by the Indian child's tribe (as near to the child’s home as possible)
3. An Indian foster home licensed or approved by an authorized non-Indian licensing authority (as near to the child’s home as possible)
4. Another institution approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs (as near to the child’s home as possible)

Do tribes have rights under ICWA?

Yes. They have the same right to take part in the case as the parents and person or agency seeking to remove the child from the parent(s). Tribes should have a chance to be actively involved in all stages of every type of case and can come to every hearing. Tribes have a right to be involved in all status offense cases involving Indian children who are in placement. Status offenses are charges like truancy, runaway, under-age drinking, curfew and other age-related offenses. 

I have to give notice in an ICWA case. What do I do?

You must learn the ICWA’s special procedures and requirements, which state that:

• The person filing the case must file and serve the correct kind of notice on the children’s tribe(s) and the parents or Indian custodians. You can get these forms (GDN M 401, GDN M 402, GDN M 403) from the Washington court.
• The person filing the case must show there were active efforts to provide services and programs to the children’s parents to address any problems that interfere with their ability to parent. The person must show these efforts didn’t correct the parenting problems.
• The person who filed the case must give clear and convincing evidence, including testimony from expert witnesses, that remaining with the parent will probably cause the children serious emotional or physical damage. You can read about this rule in the Washington state ICWA law.