§60.11 Indian Child Welfare Act (Icwa)

• Jurisdiction: Washington

§ 60.11 INDIAN CHILD WELFARE ACT (ICWA)

There are two acts, federal and state, governing Indian child welfare. The federal Indian Child Welfare Act (ICWA), 25 U.S.C. ch. 21, is discussed in Chapter 15 of this deskbook; the Washington state act, Chapter 13.38 RCW, is discussed in Chapter 16. An in-depth discussion of these two laws is beyond the scope of this chapter, but it should be noted that every Washington adoption must address, at a minimum, certain Indian child welfare requirements.

It is worth mentioning that the federal ICWA was established to address the disproportionate number of Indian children who were being separated from their families and their tribes. The federal act also recognized the distinct culture of Native American tribes, where villages did, indeed, help to raise a child, and that a tribe should be given a voice in an Indian child's welfare.

At the crux is the need to determine whether the child is an "Indian child." If the child is an "Indian child," then the child's tribe(s) must be contacted, notices must be given, a voluntary consent must be signed under a different procedure than usual, and if the involuntary termination of one birth parent is sought, then much more needs to be proven at trial. A failure to determine the applicability of ICWA or Chapter 13.38 RCW, or a failure to follow their requirements, can result in an adoption being undone years after the finalization.

Every petition filed under Chapter 26.33 RCW must allege whether the child is or may be an Indian child. RCW 26.33.040(1)(a). In every adoption proceeding, the attorney must file a sworn statement documenting efforts to determine whether the child is an Indian child. RCW 26.33.040(1)(c). These efforts must be made in good faith. See RCW 13.38.050 for examples of what such efforts look like.

The definition of an Indian child is an unmarried, unemancipated person who is under 18 years old and is either (1) a member of an Indian tribe or (2) eligible for membership and the biological child of a member of an Indian tribe. 25 U.S.C. § 1903(4); RCW 13.38.040(7).

A "parent" "does not include the unwed father where paternity has not been acknowledged or established." 25 U.S.C. § 1903(9); see RCW 13.38.040(13).

An "Indian tribe" is defined as a federally recognized tribe. Thus, a child who is eligible for membership in a non-federally recognized tribe, or in a Canadian band, is not an Indian child. 25 U.S.C. § 1903(8); RCW 13.38.040(11).

Do not confuse membership...