What is ICWA and why was it passed?
“ICWA” stands for the Indian Child Welfare Act. ICWA was promulgated and passed in 1978 in response to the alarmingly high number of Indian children being removed from their homes by both public and private agencies in an effort to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902).
ICWA sets federal requirements that apply to state foster care, guardianship, termination of parental rights, and adoption proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe. Nearly every state, including Oklahoma, has passed its own version of ICWA.
How does ICWA protect American Indian/Alaska Native children and their families?
When ICWA applies to a child’s case, the child’s tribe and parents or Indian custodians have an opportunity to be involved in decisions affecting services and placement decisions for the Indian child. A tribe or a parent can also petition to transfer the case to their own tribal court. ICWA sets out federal requirements about the removal and placement of Indian children in foster care, guardianship, or adoptive homes and allows the child’s tribe to intervene in the case
How do I know if ICWA applies to my case?
Indian children involved in state foster care, guardianship, termination of parental rights, or adoptive proceedings are covered by ICWA. A person may define themselves as Indian but in order for ICWA to apply, the involved child must be an Indian child as defined by the law. Additionally, ICWA requires that the provisions of ICWA be followed even if it can only be determined that the child is reasonably presumed an Indian child.
ICWA defines an “Indian child” as a person who is unmarried, under the age of eighteen and either a member of an Indian tribe or is eligible for membership in an Indian tribe as the biological child of a member of an Indian tribe. Individual tribes have the right to determine eligibility, membership, or both. In order to determine if the child or children in the proceeding will be included in this definition, it is best to speak directly with an attorney who specializes in Federal Indian Law and ICWA.
What if my child is Indian but is not a member of a federally recognized tribe?
If your child does not meet the definition of “Indian child” outlined in the law, ICWA would not apply to your child’s case. Other federal and state laws, however, may provide other protections, including support for placing your child with relatives and the opportunity to be heard in court.
What considerations should be made in an ICWA case?
If an Indian child is involved in a guardianship, termination of parental rights, adoptive proceeding, or other proceedings as defined by state or federal law, the following considerations will be made:
- Were “Active Efforts” provided to the natural parents or the family?
- Is the proposed or current placement ICWA compliant?
- Will the child be exposed to cultural bias if placed in the proposed home or current placement?
- Have the natural parents or other guardians received proper notice of the proceedings?
- Has the tribe received proper notice of the proceedings?
- Will the child experience probable and irreparable physical or emotional harm is returned to the natural parents?
What are active efforts?
States are required to provide active efforts to families, and the court will be asked to determine whether active efforts have been made. Under the federal regulations, “active efforts” mean the active and engaging, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with his or her family. They also address the unique culture of the Indian child and family and extended family (25 C.F.R. § 23.2). The federal regulations give eleven (11) examples of active efforts, including providing culturally appropriate services, actively engaging and consulting with the child’s extended family and community, and supporting regular visitation with the parents.
ICWA mandates the state make active efforts in every ICWA case in two areas:
- Provide services to the family to prevent removal of an Indian child from his or her parent or Indian custodian
- To reunify an Indian child with his or her parent or Indian custodian after removal.
A cornerstone of active efforts is active and early participation and consultation with the child’s tribe in all case planning decisions. Additionally, active efforts are different from “reasonable efforts.” For example, reasonable efforts might be only a referral for services, but active efforts would be to arrange for culturally-appropriate services and help families overcome obstacles (e.g., transportation, finances, childcare, etc.) in order to engage in those services. ICWA (25 U.S.C. § 1901 et. seq.) and the federal regulations (25 C.F.R. Part 23) apply whether or not the child’s tribe is involved in the custody proceedings.
What is irreparable physical or emotional harm under ICWA?
If, despite appropriate active efforts, the natural parents or Indian custodian is unable or unwilling to provide a safe and stable living environment for the Indian child, it may be found that irreparable physical or emotional harm will come to the Indian child if returned. This may include anything from ongoing and untreated substance abuse, failure or refusal to provide necessities such as food, clothing, and shelter, exposure to physical or psychological abuse, exposure to domestic violence, exposure to ongoing criminal activity, or any other action that tends to expose the Indian child to harm. The harm should be shown to be ongoing or immediate.
No two cases are identical. What may be irreparable physical or emotional harm for one child may not be so for another. Due to the number of factors and the uniqueness of each case, it is important to discuss your case with an attorney familiar with Federal and Oklahoma ICWA compliance and an experienced Oklahoma guardianship attorney.