4. Procedural Requirements of the Icwa

• Library: The Indian Child Welfare Act Handbook: A Legal Guide to Custody and Adoption (ABA) (2018 Ed.)

Once a state court has determined that a proceeding is governed by the Indian Child Welfare Act (ICWA), there are numerous procedural requirements that a court must follow in both voluntary and involuntary proceedings to comport with the ICWA. These procedures were enacted to ensure maximum involvement from the Indian child's tribe, as well as to secure the sanctity of the Indian family, by ensuring that the removal of an Indian child from his or her family would be done pursuant to stringent requirements. Some courts have concluded that these procedural requirements are jurisdictional in nature; thus failure to adhere to them may invalidate state court proceedings.¹

The practitioner will note that many of the requirements mandated by the ICWA are similar to procedures states must follow pursuant to Title IV-B and Title IV-E of the Social Security Act.² In certain areas the ICWA expands upon the procedural protections afforded parents to require more from a state to remove an Indian child from her or his family, however, on either a temporary or permanent basis.³ In a situation, where applicable federal or state law provides a higher standard of protection to Indian parents or custodians than the ICWA, that higher standard must be applied.⁴ To implement the ICWA, many states have adopted state laws and guidelines that are more stringent than the federal law.⁵ In those cases the state law or regulation would apply. Other states, in an apparent response to the ICWA, have amended their dependency and neglect laws to conform to the ICWA, resulting in a higher standard of process and proof required in non-Indian cases as well.⁶

All provisions of Title IV-E of the Social Security Act apply to ICWA cases, even though the ICWA itself does not incorporate these provisions, except where there is a direct conflict between the ICWA and Title IV-E.⁷ These include, for example, various criteria related to a periodic review of each foster child's case.⁸ The ICWA should be read in pari materia with the provisions of Title IV-E and not as an alternative scheme for Indian children only. The procedural protections that are discussed as follows, however, relate specifically to the ICWA. Where appropriate, potential conflicts between and how to synthesize the two laws will be discussed.

Notice Requirements

One of the fundamental underpinnings of the ICWA is the notion that a child's Indian tribe has a distinct interest, separate from a parent's or Indian custodian's, in any proceeding involving the child that must be protected throughout, both because children are the tribe's future and because the tribe has a parens patriae relationship with its children.⁹ To protect these interests, the ICWA grants the tribe the right to intervene in the proceedings,¹⁰ as well as the right to request a transfer to tribal court.¹¹ The exercise of that right is, of course, contingent upon the tribe receiving timely and adequate notice of the proceedings.¹²

Under the ICWA, in any involuntary proceeding where the party initiating the proceeding knows or has reason to know that an Indian child is involved, that party must notify the parent, custodian, and tribe by registered or certified mail, with return receipt requested, of the commencement of the proceedings.¹³ There is a division of opinion between courts as to whether failure to serve proper notice is a jurisdictional defect that spoils the proceedings.¹⁴

Notice is not specifically required in voluntary proceedings, but the state court must ensure that the party seeking placement has taken all reasonable steps to verify the child's status and this may include contacting the tribe.¹⁵ The commentary to the regulations and the guidelines indicate that states are not precluded from requiring notice in voluntary cases and recommend that tribes receive notice in voluntary cases.¹⁶

When Notice Is Required

A finding by a state court that a child custody proceeding involves an Indian child is not a prerequisite to the giving of notice to an Indian custodian or tribe under the ICWA.¹⁷ Notice must be given even if doubts remain whether the child is an Indian child.¹⁸ This is so because often only with the input of an Indian tribe will a state court be able to determine whether a child is Indian under the Act.¹⁹ Thus, an Indian tribe plays a critical role in the initial determination of the applicability of the ICWA and notice to it is imperative any time the court or any of the parties have reason to know that an Indian child is involved.²⁰ Some of the factors sufficient to provide an agency or court with reason to know that a child is Indian are set out in the Bureau of Indian Affairs (BIA) regulations. An agency or court has reason to know that a child is an Indian child if any party, agency (or employee thereof), officer of the court or the child provides/has discovered information that the child is Indian or if the domicile or residence of the Indian child is on a reservation or in an Alaska Native village.²¹ State courts struggle with the notion that proceedings must halt in order to notify Indian tribes based upon bare assertions of Indian status, however, and some reject the notion that mere self-identification by a parent of a child is sufficient to trigger notice.²² There is a split on whether "mere suspicion" is enough.²³

There are a number of different formulations that have been used to describe when notice is required. They range from "virtually any criteria on which tribal membership is based"²⁴ to "needs only a suggestion of Indian ancestry"²⁵ to "a low but reasonable probability the child is Indian."²⁶ In general, the burden of bringing forward sufficient evidence to trigger notice with the proponent of applying the ICWA,²⁷ although as noted the threshold is generally low. Moreover, the party who is seeking the out-of-home placement or termination of parental rights has the duty to make adequate inquiries to all applicable tribes about the child's Indian status—which will often involve more than the formal notice process (see Chapter 2)—and also has the burden of sending the notice once the threshold is met.²⁸ As one court stated, "the burden . . . of complying with the notice requirement is minimal compared with the potential costs of erroneously failing to send notice . . . "²⁹ Failure to give notice cannot be justified by a later determination that the child in question is not Indian, as some have attempted to argue.³⁰ A parent may not waive notice to the tribe,³¹ although if a tribe that did not receive legally adequate notice is fully participating in the proceeding this may be viewed as rectifying the deficiency.³²

Many state courts, faced with appellate arguments that improper notice or no notice was provided under the ICWA, have adopted a rule that remand will issue to a trial court to effect proper notice, but if that is done and the lower court determines that the ICWA does not apply, the appellate court will rule on the merits of the underlying appeal without vacating the lower courts' decisions on the merits.³³ These cases are representative of dozens of recent cases where parties have attempted to claim some Indian heritage as a manner of defending against termination proceedings in state courts. A number of courts have allowed appeals to take place on this issue even where the issue was not raised in the lower court.³⁴

If a child is a member of only one tribe, only that tribe is entitled to notice of the proceedings. However, in many cases the only way to determine where a child is a member is to give notice to every tribe to which the child claims some affiliation. Failure to do so may interfere with the state court's ability to establish where the child is a member or eligible for membership.³⁵ If tribal affiliation is undetectable, the ICWA permits the state court to notify the US Department of the Interior, which is then charged with helping to identify tribes to contact,³⁶ but notice is not enough when it is possible to identify a list of tribes with whom the child may be connected.³⁷ Addresses for the various BIA area offices where notice can be sent are set out in 25 C.F.R. § 23.12. Once a tribe proclaims that a particular child is a member of that tribe, one court has declared, that decision is binding on the state court even if proper and legal notice was not effected upon another tribe claiming an interest.³⁸ A practitioner should also be aware that certain states have enacted state versions of the ICWA that may trigger notice under state law that must be adhered to prior to the commencement of an action.³⁹

The ICWA provision relating to notice unfortunately uses a term that is not defined under the law. The section provides that "in any involuntary proceeding" notice must be provided to the tribe.⁴⁰ The regulations address this issue by defining "involuntary" to mean "a child custody proceeding in which the parent does not consent of his or her free will to the foster care, preadoptive, or adoptive placement or termination of parental rights or in which the parent consents to the foster care, preadoptive, or adoptive placement under threat of removal of the child by a state court or agency."⁴¹

When a proceeding is commenced as a voluntary one, the ICWA does not mandate notice to the tribe in all cases. Most courts that have addressed this issue have held as much.⁴² As noted earlier, however, the regulations require that the state court must ensure that the party seeking placement has taken all reasonable steps to verify the child's status which may include contacting the tribe,⁴³ and the guidelines indicate that states are not precluded from requiring notice in voluntary proceedings and recommend that tribes receive notice in voluntary proceedings.⁴⁴

The lack of mandatory notice in all voluntary cases highlights the inconsistencies in the statute, particularly the interplay between ICWA notice provisions and the provisions recognizing exclusive tribal...