The Indian Child Welfare Act (ICWA) was enacted in 1978 to protect the welfare and custody of American Indians, Alaskan tribes, and other children, natives, and families of tribal origin. The law was introduced because research studies indicated that a very large number of children of native ancestry were unjustly separated from their families and communities by private adoption agencies and state child welfare organizations. As a result of separation from families and subsequent adoption by the child welfare unit, a vast majority of children were unable to cope with their new environment.
The removal of Indians and native children for the sake of child welfare was so rampant that more than a quarter of native children's population was moved from their homes. Of these children, nearly 85% of children lived outside their communities even when there was a relative or someone in the family fit to take the child. After the law was passed, the situation has improved, but there are still widespread concerns among lawmakers and native Indians regarding the safety of Native American children.
According to Native Americans, there is a potential lack of awareness among child welfare workers who don't fully understand the role of Indian communities and the intertwined family culture. Due to these misunderstandings, the rate of Native Indian children in foster care is as high as 16 times the rate for non-Indians. In fact, there is a need to understand and implement the law to save Native American and tribal children from psychological and emotional dilemmas.
How ICWA helps?
The ICWA, the Indian Child Welfare Act, requires caseworkers to consider four major considerations among many others before making a decision. These include:
Providing active efforts to the family to make the transition from home to foster care as seamless as possible.
Identifying a placement that fits under the ICWA preference provision to ensure that the child doesn't live outside of the community.
Notifying the child's tribe and the family of any legal proceedings before taking any action.
Working actively to ensure that the family and the child's tribe is involved in the legal proceedings.
Experts believe that ICWA is a comprehensive law that takes into account the political status and cultural considerations of Native American children. Some welfare groups have also called it a "Gold Standard" for similar childcare laws because many of its clauses are codified into State and Federal laws for the wider population.
Among the most important legal clauses of ICWA is the jurisdiction matters, which explicitly states that the State courts do not have jurisdiction over Native American child proceedings. Instead, ICWA gives necessary jurisdictional powers to the Indian tribes to prevent their well-being and culture.
Similarly, ICWA sets strict rules of notification stating that any agency or another stakeholder in the legal proceeding of a Native American or tribal child must notify the Indian custodian and the tribe ten days prior to proceedings. In addition, the determination of child status as belonging to Indian tribal ancestry is up to the tribe. It means that the ICWA also protects a lot of tribal children who were often manipulated due to the lack of ancestral evidence.
In most cases, ICWA also provides the tribe and the parents the right to intervene in cases involving foster care proceedings before or after the adaption. In cases of concurrent jurisdiction, the tribe or the custodian may exercise its power to move the proceedings from the State court to the tribal court.
Using good cause provision, a parent can also veto such transfers to the tribal court, which will prevent unjust transfer in cases where one parent is non-Indian. On the other hand, a tribal court may not accept a transfer if it feels that the tribe doesn't have enough funds to raise the child in custody properly. It's also true that ICWA requires stakeholders to actively rehabilitate the root cause of the problem before moving to courts. As a result of ICWA recommendations, intervention to solve family matters has resulted in very positive outcomes.
The ICWA Doesn’t Apply To Every Case
There is some confusion about whether the ICWA applies to all matters of child custody, but that is not the case. While the ICWA does give jurisdiction to Native American child proceedings over the State courts, it does not apply to family law cases. Specifically, in divorce and child custody cases, the ICWA does not have authority in these matters.
If you or anyone you know feels that a child of tribal origin requires help, please do not hesitate to contact Circling Eagle Law. Based in Fargo, North Dakota, the legal firm has years of experience in dealing with family and tribal cases. Embracing honesty and compassion, our attorneys will provide a free 15-minute consultation after reviewing your case.
Call us today at (701) 401-7404 to learn more.