Indian Child Welfare Act Frequently Asked Question
What is ICWA, and why was it passed?
"ICWA" stands for the Indian Child Welfare Act, which is a federal law passed in 1978. ICWA was passed in response to the alarmingly high number of Indian children being removed from their homes by both public and private agencies. The intent of Congress under ICWA was to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families" (25 U.S.C. § 1902). ICWA sets federal requirements that apply to state child custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe.
How does ICWA protect Native American/Alaska Native children and their families?
When ICWA applies to a child’s case, the child’s tribe and family will have an opportunity to be involved in decisions affecting services for the Indian child. A tribe or a parent can also petition to transfer jurisdiction of the case to their own tribal court. ICWA sets out federal requirements regarding removal and placement of Indian children in foster or adoptive homes and allows the child’s tribe to intervene in the case. To better understand how the ICWA process works please click here to view and download the ICWA flowchart.
Who is covered by 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.
ICWA does not apply to divorce proceedings, intra-family disputes, juvenile delinquency proceedings, or cases under tribal court jurisdiction.
How do I know if my child is eligible for membership in a tribe?
All tribes have the right to determine who is a member of their tribe, and different tribes have different requirements for eligibility. In order to understand these requirements for the particular tribe in question, contact the child’s tribe.
What if my child is Indian but is not a member of a federally recognized tribe?
If your child does not meet the definition of “Indian child” outlined in the act, ICWA would not apply to your child’s case. Other federal and state laws, however, may provide other protections, including relative placement provisions and the opportunity to be heard in a case review hearing.
What considerations should be made in an ICWA case?
Caseworkers must make several considerations when handling an ICWA case, including:
Providing active efforts to the family (see also What are active efforts?)
Identifying a placement that fits under the ICWA preference provisions
Notifying the child’s tribe and the child’s parents of the child custody proceeding
Working actively to involve the child’s tribe and the child’s parents in the proceedings
Your caseworker should be able to explain your rights under ICWA and any other case actions in a manner that is easy for you to understand.
Who should you contact if you feel that your rights under ICWA are being ignored?
If you feel that ICWA is not being applied correctly in your child’s case, you should contact the following people as soon as possible:
An attorney (Indian law experience preferred)
The child’s tribe
The court may order different services or a different placement if it is determined that ICWA is not being applied correctly.
What are "active efforts"? What considerations should be made in an ICWA case?
States are required to provide active efforts to families, and the court will be asked to determine whether active efforts have been made. The definition of "active efforts" is left open in the Indian Child Welfare Act to accommodate individual case decisions. However, federal guidelines do exist (Federal Register, Vol. 44, No. 228, Monday, November 26, 1979).
ICWA mandates the state to make active efforts in every ICWA case in two areas:
Provide services to the family to prevent removal of an Indian child from his or her parent or Indian custodian
Reunify an Indian child with his or her parent or Indian custodian after removal.
A cornerstone in the application of active efforts is active and early participation and consultation with the child’s tribe in all case planning decisions. Additionally, active efforts is more intensive than "reasonable efforts." For example, reasonable efforts might be only a referral for services, but active efforts would be to arrange for the best-fitting services and help families engage in those services. The federal guidelines referenced above apply whether or not the child’s tribe is involved in the custody proceedings.
How do I determine if a child is a member of the Choctaw Nation of Oklahoma?
If your child is a member of the Choctaw Nation of Oklahoma he or she is eligible for assistance under the Indian Child Welfare Act if the child is involved in a child custody proceeding that involves foster care placement, termination of parental rights, or adoptive placement.
In order to understand eligibility requirements for membership in the Choctaw Nation of Oklahoma contact the tribe’s CDIB and Tribal Membership Program or download the tribal membership frequently asked questions document. Phone the Tribal Membership Program at 580-924-8280.
How does a Choctaw family become eligible to adopt a Choctaw child if the family lives outside the Choctaw Nation Service Area, or lives out of state?
If you are a Choctaw family interested in adopting or fostering a Choctaw child and live outside the Choctaw Nation 10 ½ counties service area in or out of state, there is some information your family needs to know to have a better understanding of how the process works. The Adoption/Foster Care program has developed procedures specifically related to this matter.
There is a certification process for adoption and fostering that results in a home study evaluation. A home study is required to adopt or foster Choctaw children. The home study along with a resource application and a copy of your CDIB and/or Membership is required to be on file in our office. Your home study is reviewed by the adoption/foster care specialist and state workers when choosing a placement for a Choctaw child.
Since your family resides outside the Choctaw Nation service area, the CFS Adoption/Foster care Specialist cannot perform the home study however there are a few options for obtaining the essential home study.
Contact your county Adoption or Foster care agency through the state.
When considering certification through your county/state agency, you are applying to be a home for all children, not just Choctaw children. If you desire to adopt or foster Choctaw children only, your family will need to express your desires to your worker. It is important to discuss with your worker that your family has been in contact with your tribe and your family has made application with us in order to be on our list. Once the certification is complete and your family is an approved adoptive or foster home, most agencies will send your family’s home study to our office upon your request and consent.
Contact a local tribe’s Adoption or Foster care program
The second option for home study certification is through another Native American tribe that services the area you reside. If you become certified through another tribe, your home will be utilized for their Native American children, not Choctaw children. Your family can request permission from this tribe to allow placement of Choctaw children, in addition to their own, however each tribe has their own guidelines and you would need to speak to them directly to find out if this is possible.
What is the role of the Indian Child Welfare Worker if the child is located outside the Choctaw Nation’s 10.5 county service area or located outside the state of Oklahoma?
If you are located outside the Tribe’s service area or out of state, the CFS Indian Child Welfare Social Worker will intervene in the child welfare case and monitor the case with the state’s case worker by phone and letter. We will not be present in person for court hearings but can be available by phone or send letters to the court with our recommendation.
When the CFS social worker receives notice an Indian child has been taken into a state’s custody and determines the child’s eligibility, an initial intervention letter is submitted in court and CFS becomes a party to the case and request that all legal documents be sent to CFS’s attention and an effort is made to contact the state’s caseworker.
CFS helps to define what "active efforts" include and what services may be available in the parents area, how they can be utilized and how the state worker can make an active effort to work with the family in the reunification process. When Choctaw children are taken into custody it is our hope that there is a family member available for placement of the child. Often the child has to be placed in a foster home and our CFS worker strongly encourages the state worker to locate a Tribal Foster home for child(ren) to be placed in, although Tribal homes are difficult to locate sometimes and the child(ren) have to be placed in a non-tribal home.
There is a general lack of knowledge among our families, caseworkers, and courts about the ICWA and what the Choctaw Nation Tribal worker’s role is when CFS intervenes in a open child welfare case and often a misunderstanding regarding what the Tribe does once it becomes involved.
The fact is ICWA is the Federal Law. By sending out timely notices in the beginning of a case, state workers can help the Tribe and state start off a case together and work toward finding a safe permanent home for our children. This can be a smooth process when there is collaboration among the state and the Tribe.