2006 Jordan Institute
11, No. 2
Implementing the Indian Child Welfare Act of 1978
It has been almost 30 years since Congress enacted the Indian Child Welfare Act. Though we’ve made some strides during this time, child welfare agencies occasionally struggle with the why and the how of this important law.
As the story of Zak’s family illustrates, failing to understand and implement the requirements of ICWA can cause delays and unnecessarily adversarial relationships between the various parties in child welfare cases that involve Native families. It can also cost child welfare agencies in terms of time, money, and frustration. Worst of all, it can threaten the well-being of Indian children, their families, and their tribes.
This article will review the reasons ICWA was created and describe how to comply with it to safeguard the interests of Indian children and their tribes.
ICWA does several important things to protect Indian children and Indian tribes. First, it establishes a federal standard that defines what is in the best interests of Indian children. This standard is different from the standard for other children, in part because Indian children enjoy a different status in the courts because they are also part of tribes, which are distinct sovereign entities. This standard acknowledges that it is of vital importance to the well-being of Indian children to protect their rights as Indians, including their right to be raised in a home that immerses them in their cultural heritage (Goldsmith, 2002).
ICWA also protects the decisionmaking role of the child’s tribe by requiring state courts and child welfare agencies to notify tribes, invite them to intervene, and comply with tribal preferences during:
Even if a tribe initially declines to intervene, it can change its mind at any time.
Identification of ICWA Children. ICWA applies only to Indian children who are either (1) a member of a federally-recognized tribe or (2) eligible for membership in a federally-recognized tribe AND is the biological child of a member of that tribe.
As the NC Supreme Court recently confirmed, only children from federally-recognized tribes are subject to ICWA (see 169 N.C. App. 701, 612 S.E. 2d 639,2005). For a list of federally-recognized tribes dated spring/summer 2005 go to <www.doi.gov/leaders.pdf>.
To fully comply with ICWA child welfare workers should inquire whether children/parents are American Indian with every family and at every stage of each family’s case.
Even if ICWA does not apply to an Indian child, child welfare workers should still engage these families as they would any family. This means applying the family-centered principles of partnership and making the assumptions that form the basis of our work. Among these is the belief that the safety of children and others is always the first concern, that children have a right to their families, and that families themselves are our primary resource for protecting children.
Notification of Tribes. If it suspects a child is Native American, a child welfare agency must immediately contact the child’s tribe to determine whether the child is an Indian child as defined by ICWA. Only the tribe has the power to determine whether the child is, or is eligible to be, a member.
Once tribal affiliation is determined, the child welfare agency must provide written notice of any impending placement proceedings to the child’s parents, Indian custodian, and tribe. ICWA spells out the information that must be contained in that notice, which must be sent to the tribe via registered mail, return receipt requested. It is best to phone the tribal contact person and let that person know that you are sending the required registered letter. It is also advisable to make a follow-up phone call a few days after the letter is mailed out.
Active Efforts. Under ICWA, during foster care or termination of parental rights proceedings child welfare agencies must prove that they have used “active efforts” (a higher standard than “reasonable efforts”) to provide remedial services and rehabilitative programs to prevent the breakup of the Native American family, and that these efforts have failed. Active efforts must be directly connected to the parenting problems that are requiring your agency to seek or maintain custody of the child (NCJFCJ, 2002).
Higher Standards of Proof. When ICWA applies, in order for the child to be placed in or remain in foster care, DSS must use a “qualified expert witness” to present clear and convincing evidence in court to demonstrate that continued custody with the parent is “likely to result in serious emotional or physical damage to the child.” If a TPR petition is filed, the standard of proof rises to beyond a reasonable doubt, which is higher than North Carolina’s “clear and convincing” standard for non-ICWA cases.
Placement Preferences. If placement of the child is necessary, ICWA also establishes specific placement preferences. Under ICWA, Indian children must be placed in the least restrictive setting possible, and the placement must be within reasonable proximity to the child’s home.
Additionally, foster care placements are given the following order of preference:
The following is the preferred order for adoptive placements of Indian children under ICWA:
Tribes may alter the order of preference for its children, and the child welfare agency must follow this new order. Also, consideration may be given to a parent’s or a child’s wishes with regard to placement. (It should be noted that these Indian/tribal preferences are possible because another federal law, the Multiethnic Placement Act, has no effect on ICWA; thus an Indian child may be moved from a non-Indian foster home to comply with these preferences without a MEPA violation.)
Social workers must make every attempt to identify placements that fit with this prescribed order, and they must carefully document any reasons for failure to follow it (Goldsmith, 2002). These preferences apply in ICWA cases even if the tribe elects not to intervene.
If a county or state child welfare agency places an Indian child in foster care and the placement disrupts, compliance with ICWA must continue: the agency must send notification via registered mail to the tribe, which has another opportunity to intervene or indicate preferences.