In 1978, Congress passed the Indian Child Welfare Act (ICWA) establishing new policies and practices for states to follow in dependency, foster care and adoption proceedings involving Indian children. ⁽¹⁾

The Act was needed, Congress said, because in the states' exercise of their "recognized jurisdiction" over child custody issues they had failed to accommodate "the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families".⁽²⁾

The Act included a somewhat muted mea culpa accepting Congressional responsibility

"Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources…. [and] there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children…."⁽³⁾

"[A]n 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."⁽⁴⁾

"The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.⁽⁵⁾

Who is Covered?
The Act requires a course of action with Indian children markedly different from that with non-Indians and it is different from the start. The form used by the State of Arizona to initiate a dependency petition now has a box to be checked indicating whether the child at issue is or is not an Indian child, so the first step of every proceeding is to determine if you are dealing with an Indian child and whether ICWA's regulations are to be followed.

An Indian child is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe"⁽⁶⁾ Ultimate determination of tribal eligibility is made by a tribe itself, not by the court nor the family, and the eligibility rules can vary widely from tribe to tribe.

ICWA applies even if the child is not being removed from an Indian home. As long as the child is an Indian child, ICWA is in force. ⁽⁷⁾

To begin gathering the information, someone must ask the child, parent or caseworker whether ICWA might apply because the child has a parent with Indian heritage. And of course, no affirmative or negative assumptions may be made based on appearance or domicile.

The Proceeding and Participants
If the child is Indian the next step is to determine whether a state or tribal court will hear the petition. The process should begin in the Juvenile Court with a fair presumption that the Juvenile Court will end up hearing a case involving an Indian child just as it does all others. At the outset, however, is a requirement that notice be given to the child's tribe that a dependency or other petition has been filed and that the tribe has a right to intervene.⁽⁸⁾

ICWA adds two potential parties to any Juvenile Court proceeding involving an Indian Child. . The Act allows the tribe itself to intervene at any time⁽⁹⁾ and it permits the intervention of an "Indian custodian"⁽¹⁰⁾. An Indian Custodian is "any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child." ⁽¹¹⁾ (emphasis added)

Both of these parties may also request transfer from state to tribal court. Tribal courts can assert their exclusive jurisdiction when the child lives in or is domiciled in the reservation or is already a ward of the tribe. The tribal court can also accept jurisdiction if either parents makes such a request and another parent doesn't object.⁽¹²⁾

Only "in the absence of good cause to the contrary" is there an objection to transfer to a tribal court.⁽¹³⁾ While no statistics are readily available, many observers believe that most cases stay in the state juvenile court with the tribe acting as a party to the proceedings, if it is involved at all. But it is important to remember that the tribe or the Indian guardian is able to intervene at any time and have the case transferred to a tribal court even if a state court has already begun to hear the case.⁽¹⁴⁾

Burdens of Showing and of Proof
The Act imposes a unique burden on the state at the outset to attempt family reconciliation even before a dependency hearing. The court must be satisfied that the state has made active efforts to provide "remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." ⁽¹⁵⁾ No such strict requirement is in place for non-Indian dependency hearings in which only require reasonable efforts at the outset to maintain the family structure

All dependancy petitions are initiated because of concern about circumstances in which there is likelihood of serious emotional or physical damage to the child or children. These concerns must be proven to the court, not just alleged. ICWA establishes burdens of proof one notch higher at each stage of a proceeding involving Indian children. ICWA requires "clear and convincing" instead of "preponderance of the evidence" at the dependency phase and proof "beyond a reasonable doubt" instead of "clear and convincing evidence" for final parental severance.⁽¹⁶⁾

Placement
Finally, if the court orders foster care or adoption there is a mandated preference that must be followed when placement determinations are made. For foster care or pre-adoptive placement ICWA mandates preferences for i) a member of the Indian child's extended family; ii) a foster home licensed, approved, or specified by the Indian child's tribe; iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or iv) a suitable institution for children approved by an Indian tribe or operated by an Indian organization. Tribes may establish different preferences in individual circumstances if they wish.⁽¹⁷⁾

In adoption the Act has fewer choice and specifies placement preferences as being with i) a member of the child's extended family; ii) other members of the Indian child's tribe; or iii) other Indian families.⁽¹⁸⁾

Summary
ICWA adds a level of potential complexity to a system that can already seem excessively burdened with opposing lawyers, parties with different interests and sometimes widely differing perspectives on a single set of facts. But one must remember the objectives of ICWA. ICWA merely recognizes some added characteristics of Indian culture that can be overlooked by non-Indian courts and raises those characteristics to a level of importance they did not historically have. It attempts, first, to save families, and then to save the culture if the family cannot be saved.

1. 25 U.S.C.S. §§ 1901 et seq

2. 25 U.S.C.S. § 1901 (5)

3. § 1901 (2), (3)

4. § 1901 (4)

5. 25 U.S.C.S. § 1902

6. 25 U.S.C.S. § 1903(4)

7. Michael J., Jr. v. Michael J., Sr., 2000 WL 873182 Ariz.App. Div. 1, July 3, 2000.

8. 25 U.S.C.S. § 1911(a)

9. 25 U.S.C.S. § 1911(c)

10. 25 U.S.C.S. § 1911(c)

11. 25 U.S.C.S. § 1903(6)

12. 25 U.S.C.S. § 1911(a)

13. Id.

14. 25 U.S.C.S. § 1911(b)

15. 25 U.S.C.S. § 1911(d)

16. 25 U.S.C.S. §§ 1911(e)(f)

17. 25 U.S.C.S. § 1915(b)

18. 25 U.S.C.S. § 1915(a)