The Indian Child Welfare Act is a 1978 federal law. It offers protections to Indian children, parents, guardians and tribes in cases in which a child has been removed from its home. The ICWA forces state courts to recognize the political, cultural, and social standards of Indian tribes and peoples. The Court must consider those standards during any proceeding or placement of the child.
The ICWA protects the best interests of Indian children and seeks to promote a stable, secure Indian family.
PARTIES PROTECTED BY THE ACT
Indian children are those enrolled in a tribe or eligible to be enrolled, with at least one parent who is a member of an Indian tribe. The ICWA also protects three other parties. First, it protects the custodial parents of an Indian child should they be accused of wrongdoing. The ICWA makes the state courts provide full notice of all hearings, use expert witnesses, and follow a higher standard of proof than in non-Indian cases. The Act also makes the state court appoint an attorney to represent the parents if they are unable to afford one.
Second, the ICWA protects Indian custodians. Indian people who have raised a relative child as if they were their own, or people to whom the natural parents have given temporary custody, are entitled to the same type of notice and protections as the natural parents. Finally, the Act protects tribal rights as well. The state court must give notice to the tribe and generally follow its recommendations about placement. If these parties' rights are not protected, the Act allows any of them to overturn the result of the state court.
The ICWA does not apply in three types of cases. It does not apply in divorces or divorce modifications, unless a termination of parental rights is involved or custody is given to someone other than the natural parents. It does
not apply if the child in custody is accused of a crime. Finally, Oklahoma courts have created a third exception to the law: the ICWA does not apply to noncustodial Indian parents who do not support or visit their children.
STATE AUTHORITY OVER INDIAN CHILDREN
In some cases, Oklahoma lacks any kind of authority over an Indian child. If the child lives on trust or restricted land, or in an MHO Housing cluster, or in a dependent Indian community, the state may not have authority to proceed. Under the ICWA, the case must be heard in the tribal court.
For other Indian children, the state shares jurisdiction with tribal courts. However, the Supreme Court has said that tribal courts are the preferred court for Indian children. An Indian parent or tribe may request that a case be transferred to tribal court for proceedings.
If a child is placed in foster care, the Act requires the state to follow placement guidelines. The state must try to place the child with: (1) an extended family member; (2) a tribal foster home; (3) an Indian foster home licensed by the state; (4) an institution for children approved by an Indian tribe. The court cannot deviate from these preferences without showing "good cause to the contrary"
WHERE TO FIND HELP
Oklahoma Indian Legal Services, Inc., is a non-profit legal aid organization that specializes in Indian law cases. If you have questions, or need help, contact OILS and apply for services. We will do our best to assist you.