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Frequently Asked Questions

What is ICWA?

ICWA stands for Indian Child Welfare Act. (25 U.S.C. § 1901, et seq.) ICWA is a multifaceted statute including provisions addressing:

  • Tribal rights and opportunities,
  • Indian social and cultural considerations, and
  • Minimum federal standards for state court proceedings.

This act implements the federal government's trust responsibility to tribes by protecting and preserving the bond between Indian children and their tribe and culture. Congress passed ICWA to address concerns of Indian children who were being removed from their homes and being placed with non-Indian families.

For more information on ICWA, please visit the Child Welfare Information Gateway.

How can a tribe be located?

The Bureau of Indian Affairs is the best resource for locating a certain tribe.

What types of proceedings are covered by ICWA?

  • Foster care placements:
    According to ICWA, "foster care placement" refers to any action removing an Indian child from his or her parents or Indian custodian for temporary placement in a foster home or institution, or in the home of a guardian or conservator, in which the Indian parent or custodian cannot have the child returned upon demand, but parental rights have not been terminated. (25 U.S.C. § 1903(1)(i).)

  • Termination of parental rights:
    ICWA includes in the category of termination of parental rights any action that results in the termination of the parent-child relationship. Both voluntary and involuntary proceedings are included. (25 U.S.C. § 1903(1)(ii).)

  • Pre-adoptive placements:
    Pre-adoptive placement is the temporary placement of an Indian child in a foster home or an institution after the termination of parental rights, but prior to or in lieu of an adoptive placement. (25 U.S.C. § 1903(1)(iii).)

  • Adoptive placements:
    Adoptive placement is the permanent placement of an Indian child for adoption, including any action that may result in a final decree of adoption. (25 U.S.C. § 1903(1)(iv).)

In determining adoptive placements, a preference must be given, in the absence of good cause to the contrary, the child will be placed with:

1.  A member of the child's extended family,

2.  Other members of the Indian child's tribe,

3.  Other Indian families (25 U.S.C.A. § 1915(a).)

When can a tribe intervene with a case?

A tribe may intervene at "any point in the proceeding." (25 U.S.C. § 1911(c).) Tribes have a right to intervene under the act to enforce placement preferences.

What is the best-interest standard for Indian children?

To protect the best interest of Indian children, the following objectives of the act should be considered:

  1. Jurisdictional provisions and intervention rights designed to enhance tribal control and involvement in Indian child custody cases.

  2. The adoption of minimum federal standards for the removal of Indian children from their families.

  3. The placement of Indian children in Indian homes.

  4. The support of tribal child and family service programs.

Congress has sought to protect Indian children by imposing minimum federal standards designed to ensure cultural bias and misunderstanding do not adversely affect an Indian child’s relationship with his or her Indian family and tribe.

What is the tribe's role in a state court proceeding?

If an Indian child is involved in a proceeding covered by the act, the act applies, whether or not the child’s tribe decides to become involved. A tribe may elect to participate in a state court proceeding in several capacities, including:

  1. Filing a petition to transfer the case to a tribal forum.
  2. Exercising rights granted under the act to alter the minimum federal standards.
  3. Intervening as a party at any point in an Indian child’s custody proceeding covered by the act.
  4. Providing evidence and testimony.
  5. Providing services in certain cases when a tribe operates child and family service programs.

What are Active Efforts?

ICWA requires the use of “active efforts” to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family. Please refer to the BIA ICWA Guidelines (2016) for guidelines and examples of “Active Efforts”.