ᎠᏂᏴᏫᏯ ᏗᏂᏲᏟ ᏗᏂᏍᏕᎵᏍᎩ

Indian Child Welfare

918-458-6900
homes4kids@cherokee.org
201 South Muskogee Ave. Tahlequah, OK 74464

Indian Child Welfare Act

Frequently Asked Questions

Who does this federal law effect?

This law affects all Indian children under the age of eighteen (18) who are being voluntarily or involuntarily removed from their natural parent(s) or legal guardian for foster care or adoptive placement. These children must be members or eligible for membership in a federally recognized tribe. Excluded are children adjudicated as delinquents or divorce custody matters between parents with no third party placement involved.

Legal Reference: 25 U.S.C. #sect# 1902 Congressional declaration of policy
The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture...

What types of legal proceedings are covered under the federal Indian Child Welfare Act?

The Act pertains to all child custody and placement proceedings involving an Indian child such as foster care placement, termination of parental rights, pre-adoptive placement, and adoptive placement. It does not include placement as a result of a delinquent act of a child or in a divorce custody matter between parents when no third party placement is involved.

Legal Reference: 25 U.S.C. #sect# 1903 Definitions (1) "child custody proceeding" shall mean and include:

  1. "foster care placement" which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home...
  2. "termination of parental rights" which shall mean any action resulting in the termination of the parent child relationship;
  3. "pre-adoptive placement" which shall mean the permanent placement of an Indian child in a foster home or institution after the termination of parental rights, but prior or in lieu of adoptive placement; and
  4. "adoptive placement" which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.

(4) "Indian child" means any unmarried person who is under age of eighteen and is either (a) a member of a tribe or (b) is eligible for membership in an Indian tribe...

Do guardianship proceedings fall under the federal Indian Child Welfare Act?

Yes. Any legal proceeding that causes the Indian child to be removed or separated from their biological parents falls under the provisions of the federal Act.

Legal Reference: 25 U.S.C. #sect# 1903 Definitions (1) (i)

Who determines the eligibility of the child for inclusion under this federal law?

The child's tribe is the only entity that can determine whether or not the Act applies to a particular child as inclusion of a child under the Act is based on tribal membership. Tribes have the exclusive right to determine membership requirements to their particular tribe.

Legal Reference: 25 U.S.C. #sect# 1903 Definitions
(3) "Indian" means any person who is a member of an Indian tribe...
(4) "Indian child" means any unmarried person who is under age of eighteen and is either (a) a member of a tribe or (b) is eligible for membership in an Indian tribe...
(5) "Indian child's tribe" means (a) the Indian tribe in which an Indian child is a member or eligible for membership...
(8) "Indian tribe" means any Indian tribe, band, nation... recognized as eligible... by the Secretary (of Interior)...

Published Department of Interior Bureau of Indian Affairs Guidelines:
Section B.Determination that Child is an Indian
The determination by a tribe that a child is or is not a member of that tribe, is or is not eligible for membership in that tribe, or that the biological parent is or is not a member of that tribe is conclusive.

Can the law apply to children who are not currently members of the tribe?

Yes, it can if the parent of the child is an enrolled member then the child would be eligible for membership and would fall under the purview of the Act even if not currently enrolled. In situations where the parents are not currently enrolled, there is always the possibility they may enroll themselves or the child sometime during the middle of a legal proceeding. If this happens then the case would fall under federal mandates at that point. This is a common occurrence that causes confusion and amended legal actions. Therefore, it is always better to determine any possibility of eligibility at the beginning of the proceeding by supplying the tribe with family tree information so any potential enrollment can be established. When the potential for enrollment is present we find that it is always prudent to follow ICWA mandates from the beginning of the proceeding to prevent any delays or placement problems.

Legal Reference: 25 U.S.C. #sect# 1903 Definitions
(4) "Indian child" means any unmarried person who is under age of eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

What about membership in State recognized tribes?

The federal Indian Child Welfare Act does not apply to state recognized tribes. However, some states have their own Indian Child Welfare Acts that expand the provisions of the federal law and may include certain allowances in their particular state but it would not apply nationwide.

What are the consequences for not following the law?

Any decision made in court can be appealed. The law provides that almost any error in applying the federal Indian Child Welfare Act can be overturned. To the Cherokee Nation, the worst consequence of the appeal process is the effects for the children. Appeals take a great deal of time and no matter who wins or who loses the legal battle the child always loses.

Legal Reference: 25 U.S.C. #sect# 1914 Petition of court of competent jurisdiction to invalidate action upon showing of certain violations
Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of section 1911, 1912, and 1913 of this title.