Frequently Asked Questions (FAQs) concerning Indian Child Welfare Act

What is the Indian Child Welfare Act?

The Indian Child Welfare Act (ICWA) of 1978 is Federal law that governs the removal and out-of-home placement of American Indian children. The law was enacted after recognition by the Federal Government that American Indian children were being removed from their homes and communities at a much higher rate than non-Native children. ICWA established standards for the placement of Indian children in foster and adoptive homes and enabled Tribes and families to be involved in child welfare cases.

Taken from: https://www.childwelfare.gov/systemwide/courts/icwa.cfm

Also see:

The Native American Rights Fund’s Introduction to the Practical Guide to the Indian Child Welfare Act here: http://narf.org/icwa/ch1.htm
NICWA’s description of the Indian Child Welfare Act here: http://www.nicwa.org/indian_child_welfare_act/

Who has rights through the ICWA?

Indian children involved in state child custody proceedings are covered by ICWA. A person may define his or her identity as Indian but in order for ICWA to apply, the involved child must be an Indian child as defined by the law. ICWA defines an "Indian child" as "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" (25 U.S.C. § 1903). Under federal law, individual tribes have the right to determine eligibility, membership, or both. However, in order for ICWA to apply, the child must be a member of or eligible for membership in a federally recognized tribe.

Taken from: http://www.nicwa.org/indian_child_welfare_act/faq/

Also see:

The Native American Rights Fund’s description of Who has rights under the act within the Practical Guide to the Indian Child Welfare Act found here: http://www.narf.org/icwa/faq/rights.htm

When should notice be provided that a child is in State custody?

In any involuntary proceeding in a state court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.

Disclaimer: The above provisions of the Indian Child Welfare Act are set forth to facilitate consideration of this particular topic. Additional federal, state or tribal law may be applicable. Independent research is necessary to make that determination.

Taken from: http://www.narf.org/icwa/faq/notice.htm

Also see:

A searchable tribal database is located here: http://www.ayazuta.com/
The Bureau of Indian Affairs provides a link to the Federal Register which designates tribal agents for service of notice. It can be found here: http://www.bia.gov/WhoWeAre/BIA/OIS/HumanServices/IndianChildWelfareAct/index.htm

What are some common misconceptions about the ICWA?

The Indian Child Welfare Act: Myths and Mistaken Application reviews common misconceptions about the application of ICWA, especially in child welfare cases in Michigan. The link to the article can be found here: https://www.childwelfare.gov/systemwide/courts/icwa.cfm

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