A Practical Guide to the Indian Child Welfare Act
| Publication year | 1999 |
| Pages | 16 |
68 J. Kan. Bar Assn. February, 16 (1999). A PRACTICAL GUIDE TO THE INDIAN CHILD WELFARE ACT
February, 1999
Copyright (c) 1999 by the Kansas Bar Association; Autumn Fox
I. Introduction
When the United States government created a trust relationship with Indian tribes in this country, it incurred a responsibility. Through the years, that responsibility gave way to Congress' desire to promote the self-determination of tribes. [FN2] In passing the Indian Child Welfare Act, [FN3] the government extended that concept to preserving tribes' most precious cultural resource: their children.
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ICWA was passed in 1978 in response to the large number of Indian children who were being adopted by non-Indian families. [FN4] Prior to the passage of ICWA, the removal of Indian children from their homes was commonplace. Studies found that 25 percent to 35 percent of Indian children were removed from their homes and placed in foster care or adoptive homes at one time in their lives. [FN5]
ICWA recognizes that Indians have unique traditions and child-rearing philosophies. [FN6] It recognizes the need to preserve tribes' cultural heritage, a preservation possible only if lawyers understand both the purpose and the procedural requirements of ICWA.
Section II of this article outlines the procedural requirements of the ICWA. Section III reviews the manner in which the appellate courts of courts have addressed the act and outlines practical ways for Kansas practitioners to comply with ICWA.
II. Procedural requirements ICWA
ICWA establishes both jurisdictional and substantive procedures for custody determination of Indian children. ICWA applies only to state court Indian child custody cases. [FN7] It applies to both voluntary and involuntary custody proceedings. [FN8] In determining whether ICWA applies, a practitioner must first determine (1) whether the case is a child custody preceding as defined by ICWA and (2) whether the child involved is an Indian child.
A custody proceeding within the act includes foster care placements, terminations of parental rights, pre-adoptive placements and adoptive placements. [FN9] The act does not include custody awards resulting from divorce, nor does it include placements made when a child is adjudicated a juvenile offender. [FN10]
ICWA defines an Indian child as any unmarried person younger than 18 years of age who is a member or is eligible for membership in an Indian tribe and who is the biological child of a member of an Indian tribe. [FN11] If a parent is a tribal member but the child is ineligible, ICWA does not apply. [FN12] A tribe's determination of membership or membership eligibility is conclusive and final. [FN13]
A. Tribal jurisdiction
ICWA states that tribal courts have exclusive jurisdiction over "any custody proceeding involving an Indian child who resides or is domiciled within an Indian reservation or who is a ward of the tribal court regardless of where they reside." [FN14] When a tribal court has exclusive jurisdiction, the state has no authority to act. A child's domicile is that of his or her parents, and illegitimate children take the domicile of their mother. [FN15]
In all other cases involving Indian children, tribes have concurrent jurisdiction with the state. [FN16] There is a presumption of tribal jurisdiction, [FN17] and cases should be transferred to tribal court unless there has been (1) an express declination of jurisdiction by the tribal court; (2) an objection by either parent to the transfer; or (3) good cause is shown not to make the transfer. [FN18]
While ICWA does not define good cause, courts have followed the criteria adopted by the Bureau of Indian Affairs. Good cause exists (1) if the Indian child's tribe does not have a tribal court as defined by the act; (2) if the proceeding was at an advanced stage when the petition to transfer was filed and the petitioner did not file promptly after receiving notice of the hearing; (3) if the Indian child is older than 12 years of age and objects to the transfer; (4) if the tribal court would be an inconvenient forum to the parties or the witnesses; and (5) if the parents of a child older than 5 years of age are not available and the child has had little or no contact with the child's tribe or its members. [FN19]
Additionally, the tribe can intervene at any time in the proceedings to ensure that its interests are protected. [FN20] The failure to intervene is not, of itself, considered a declination of jurisdiction. [FN21] It is reversible error for a court to deny intervention absent a showing of "good cause." [FN22]
B. Notice requirements
Finally, ICWA requires notice of involuntary proceedings where the court knows or has reason to know that an Indian child is involved. [FN23] Notice must be given even if doubts remain as to whether the child is an Indian child. [FN24] If the location of the parent or Indian custodian is not known, notice must be given to the Secretary of the Interior. [FN25] A termination hearing cannot be conducted until 10 days after
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the parent or Indian guardian and the tribe have received notice. It is reversible error for a court to terminate parental rights without notice to the tribe. [FN26] When the child custody proceeding is a voluntary one, however, ICWA does not mandate notice to the tribe. [FN27]
ICWA requires service of notice by registered mail, return receipt requested, to the parents, Indian custodian and tribe, or if the tribe cannot be identified, the Department of Interior. [FN28] The latter can be served by serving the closest area office of the Bureau of Indian Affairs. [FN29]
C. Right to counsel
ICWA mandates that a state court appoint counsel for an...
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