Chapter 11 The Indian Child Welfare Act

• Library: Representing Parents in Child Welfare Cases: Advice and Guidance for Family Defenders (ABA) (2015 Ed.)

CHAPTER 11 The Indian Child Welfare Act

David Meyers

11.01 Introduction

In 1978, Congress passed the Indian Child Welfare Act (ICWA), 92 Stat. 3069, 25 U.S.C. §§ 1901-1963 (2014), in response to "abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989). "[T]he primary mischief" Congress intended to prevent by enacting the law was "to counteract the unwarranted removal of Indian children from Indian families due to the cultural insensitivity and biases of social workers and state courts." Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2561 (2013). ICWA established "minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes." Id.

The law was enacted after Congress conducted extensive hearings leading it to find that "an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions." 25 U.S.C. § 1901(4) (2013). To address the tragic destruction of Indian families, the law established minimum federal standards for the removal of Indian children from their families so that the "unique values of Indian culture" could be protected. Id. § 1902. Many have praised ICWA's standards as being the "gold standard" which should guide decision making in all child welfare cases.

Despite ICWA, the child welfare system's discriminatory treatment of Indian children still persists. Numerous studies have found that a disproportionate number of Indian children enter and remain in foster care despite ICWA's intent to prevent this precise outcome. See Child Welfare Info. Gateway, U.S. Dep't of Health & Human Servs., Addressing Racial Disproportionality in Child Welfare 3 (2011). The best way to ensure rigorous adherence to ICWA is for parents' counsel across the country to become familiar with its provisions.

This chapter provides an overview of ICWA's key protections. It details these protections as applied to placing children into foster care or terminating parental rights. Lawyers representing parents in child welfare matters should possess a comprehensive understanding of ICWA because it provides Indian families with substantial protections beyond what is available to non-Indian families.

11.02 When Does ICWA Apply?

The law applies in all proceedings involving the foster care placement, potential termination of parental rights, or an adoptive placement of an "Indian child," defined as anyone under eighteen who is a member of, or eligible for membership in, a federally recognized Indian tribe and the biological child of a member of an Indian tribe. 25 U.S.C. § 1903(4). State law may use a more expansive definition. The Secretary of the Interior, through the Bureau of Indian Affairs (BIA), publishes an annual list of federally recognized tribes in the Federal Register. Because ICWA only protects children who are members of or eligible for membership in federally recognized tribes, children belonging to Canadian tribes, other foreign tribes, and non-federally recognized tribes are excluded, though state laws may protect such children. See, e.g., Iowa Code § 232.7 (2014) (enforcing that child custody proceedings for Indian children comply with ICWA); Minn. Stat. § 257.0651 (2014). Whether a particular child is a member of or eligible for membership is ultimately a tribal determination; membership requirements differ from tribe to tribe. See, e.g., In re A.G., 326 Mont. 403, 401, 109 P.3d 756, 759 ( 2005); In re A.L.W., 108 Wash. App. 664, 671, 32 P.3d 297, 301 (2001).

Based on this understanding, parent's counsel should investigate whether his or her client's child is a member of or eligible for membership in an Indian tribe. At a minimum, this investigation should include interviewing the client and his or her family members about possible Indian ancestry and reviewing all the documents in the case to see whether there is a possibility that the child is Indian. These steps should be taken at the outset of the proceedings, preferably in the first client interview. Counsel should promptly inform the Agency and court when there is reason to believe the case is covered by ICWA.

11.03 Requirement to Provide Notice to the Tribe

Because a tribe makes the ultimate decision whether a child is eligible for membership, tribes must receive prompt, written notice when a court "has reason to know that an Indian child is involved." 25 U.S.C. § 1912(a). If the identity of the tribe cannot be determined, notice must be given to the Secretary of the Interior.

The Bureau of Indian Affairs' guidelines set forth the most common circumstances giving rise to a reasonable belief that a child may be an Indian. See Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 228, 67586 (Nov. 26, 1979). The regulations call for notice when "[a]ny party to the case informs the court that the child is an Indian child," "[a]ny public or state-licensed agency . . . has discovered information which suggests that the child is an Indian child," or "[a]n officer of the court involved in the proceeding has knowledge that the child may be an Indian child." Id. As the Vermont Supreme Court explained, federal law prefers "to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child." In re MCP, 153 Vt. 275, 288-89, 571 A.2d 627, 635 (1989). Many states have made the inquiry into a child's Indian status a continuing obligation. See, e.g., Cal. Welf. & Inst. Code § 224.3 (2014); Colo. Rev. Stat. § 19-1-126 (2014); Iowa Code § 232B.4 (2014).

The notice requirement is so central to the statutory scheme that courts may not conduct any hearings concerning a foster care placement or termination of parental rights until "at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary." 25 U.S.C. § 1912(a). Parent's counsel should insist that the court comply with this law and not enter orders regarding placement or termination of parental rights during the ten-day period. Only after the ten-day period has expired, and the tribe or the Secretary of Interior has not responded or has informed the court that the child is ineligible for membership, may the case proceed as any other. If the court receives notice that the child is eligible for tribal membership, then ICWA applies. If the child is an Indian child, federal law gives parents and tribes up to twenty additional days to prepare for a hearing after receiving notice. See id.

Not all states have embraced ICWA's full reach. A minority of state courts have limited ICWA's reach by creating an "exception" to ICWA's reach—the "Existing Indian Family Exception." States that recognize the exception deny ICWA's protection to children who have not been living with an Indian parent or who were not closely connected with the tribe prior to the court proceedings. See, e.g., Rye v. Weasel, 934 S.W.2d 257, 261 (Ky. 1996); C.E.H. v. L.M.W., 837 S.W.2d 947, 952 (Mo. Ct. App. 1992); In re K.L.D.R., 2009 WL1138130 (Tenn. Ct. App. 2009). Counsel should learn whether this exception applies in their jurisdiction and should work with appellate attorneys to challenge it because it contravenes ICWA's plain language.

11.04 Tribe's Right to Intervene and to Transfer Jurisdiction

Once a determination is made that the case involves an "Indian child," the proceedings change dramatically. ICWA grants an Indian "custodian" and the Indian child's tribe a non-waivable right to intervene in the child protection proceeding. See 25 U.S.C. § 1911(c). A "custodian" refers to someone to whom a tribe has granted custody. This right can be exercised at any point in the proceeding. See id. § 1914.

Intervention allows Indian tribes and custodians to participate fully in all phases of the case. They have the right to receive discovery, present evidence, cross-examine witnesses, and be heard on every issue. Technically, these intervenors become formal parties...