What is the Indian Child Welfare Act (ICWA)?

Congress passed the Indian Child Welfare Act (ICWA) in 1978 in response to a pattern of wholesale public and private removal of Native American children from their homes, undermining Native American families and threatening the survival of Native American tribes and tribal cultures.[3419] ICWA was designed to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.”[3420]

Under the ICWA, the presumption is that it is in the best interest of an Indian child and the Tribe for the child to maintain ties to the Tribe. The standards in a child custody proceeding involving an Indian child is generally the same as in a child custody proceeding that does not, except that under the ICWA you must also consider the interests of the child’s tribe. Under the ICWA, the tribe itself has protectable rights that are independent of the child and the child’s parents.[3421]

In 2006, California’s Legislature codified much of the ICWA into state law with Senate Bill 678. ICWA and California law mandate specific standards that must be met before an Indian child may be removed from his or her family or placed in an adoptive or foster care placement. All state courts must follow the standards below in child welfare and custody cases involving Indian children, including:

    notice to tribes of state child custody proceedings;
    active efforts to provide rehabilitative services to the birth family or Indian custodian;
    preferred placements of Indian children with their extended family or other Indian families;
    tribal right to intervene in state child custody proceedings; and
    transfer of jurisdiction to tribal courts.[3422]
  1. 3419

    Indian Child Welfare Program: Hearings Before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs (1974) 93rd Cong., 2d Sess. 3 (statement of William Byler) (http://narf.org/icwa/federal/lh/hear040874/, last visited May 15, 2012). ↑

  2. 3420

    25 U.S.C. § 1902. ↑

  3. 3421

    Judicial Council of California, Bench Handbook: The Indian Child Welfare Act § 1.2, http://www.courts.ca.gov/documents/ICWAHandbook.pdf. ↑

  4. 3422

    Judicial Council of California, Indian Child Welfare Act (“ICWA”) Requirements, http://www.courts.ca.gov/documents/ICWARequirements.pdf. ↑