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Indian Child Welfare Act

AAIA and NICWA Legal Guide to the Supreme Court Decision in Adoptive Couple v. Baby Girl Includes summary of the case and legal analysis, including the impact of state statutes and tribal/state agreements. This document is designed to summarize the decision (what the case held about the Indian Child Welfare Act (ICWA), what it did not hold, and what it implied), and provide advocates for tribes, birth parents (particularly unwed fathers) and Indian children with possible responses to the decision.

Publications from the National Council of Juvenile and Family Court Judges (NCJFCJ) which works to ensure justice for every family and every child in every court throughout this country.

  • Measuring Compliance with the Indian Child Welfare Act: An Assessment Toolkit (February 28, 2014) - The NCJFCJ is committed to helping state courts achieve full ICWA compliance. A new resource is now available to the courts (or Court Improvement Programs) to help achieve this goal. Measuring Compliance with the Indian Child Welfare Act: An Assessment Toolkit, provides concrete tools and recommendations for the state courts to assess their current compliance with ICWA.
  • Indian Child Welfare Act Facts & Fiction (December 23, 2013) - The Tribal Judicial Leadership Group, coordinated by the NCJFCJ and Casey Family Programs, and comprised of tribal and state court judges, identified the need to dispel common misconceptions and misunderstandings around the Indian Child Welfare Act (ICWA). Included in this document are common misunderstandings, facts, recommended practices, and statutory references surrounding application, notice...
  • Tribal Engagement Strategies: Establishing and Sustaining Connections (October 23, 2013) - Meaningful collaboration has been defined as an ongoing process in which “courts and agencies identify and work toward shared goals and activities to increase the safety, permanency, and well-being of children in the child welfare system.” This technical assistance brief provides information on specific strategies employed by individuals, states, and Model Courts and is intended to inspire others...
  • Improving Compliance with the Indian Child Welfare Act: A Guide for Juvenile and Family Courts (January 3, 2013) - This technical assistance bulletin provides juvenile and family courts with practice recommendations and tools to improve compliance with the letter of the ICWA as well as with the “spirit of the ICWA” through services and supports. The first, most critical and ongoing step is to develop respectful and authentic relationships with tribes to fully implement the ICWA and best serve Native children...
  • Disproportionality Rates for Children of Color in Foster Care, 2011 (Tribal Only) (May 1, 2011)
  • Revised Active Efforts Principles and Expectations Publication (July 30, 2010) - This publication was developed in consultation with the nine federally recognized Tribes of Oregon by the Department of Human Services (DHS) and the Citizen Review Board (CRB) to create a tool to implement the active efforts mandate of the Indian Child Welfare Act (ICWA). The following guidelines are offered for use by courts, DHS staff and local CRBs in evaluating whether active efforts have...
  • Court Reform and American Indian and Alaskan Native Children: (August 1, 2009) - This Technical Assistance Brief, a joint publication of the National Indian Child Welfare Association (NICWA) and the NCJFCJ, has found that additional improvements in data collection and collaboration between courts and public agencies are required to better meet the unique needs of American Indian/Alaskan Native (AI/AN) children in court dependency cases, and offers additional recommendations...
  • Indian Child Welfare Act Checklists for Juvenile and Family Court Judges (June 1, 2003) - Provides benchcard checklists for use by judges and child welfare professionals in the implementation of the 1978 Indian Child Welfare Act.

Tribes have long recognized the problems with removal of Indian children from their communities. As many of those children who were raised in boarding schools and non-Indian foster or adoptive homes matured into adults, the voice of lost Indian children was heard around the country. Some national organizations concerned with Indian welfare began addressing this problem in the late 1960’s and early 1970’s. Documentation and testimony presented before Congress compiled a painful and tragic history of the devastating effect governmental policies and actions toward Indian children were having not just on the children themselves, but on the larger tribal communities from which they were taken. As a result of the policies and practices of State social service agencies as well as Federal Indian boarding and mission schools, vast numbers of Tribal children had been raised and educated by non-members and non-Indians. With so many children no longer living with their tribal families and kin, a real threat emerged that the very heart of many tribes’ cultural heritage would be lost or forgotten. For, if kin relations, and the duties, obligations and expectations that surround those relations constitutes the fundamental ways in which tribal customs and traditions are expressed and exercised, what would happen if those kin relations were never learned or experienced by tribal children?

This was precisely what was happening to children removed to boarding schools or non-Indian foster homes. Throughout tribal communities, there was a fear that these policies and practices of targeting Indian children and raising them outside of their cultural heritage would ultimately spell the death of many tribal societies, beliefs, languages and communities.

Over a five-year period, tribes, their allies, and Indian child welfare organizations developed a comprehensive legislative package that would address the practices of states in removing Indian children and placing them in non-Indian homes. An extensive lobbying effort took place and the legislation that eventually passed the U.S. Congress had broad bipartisan co-sponsorship. In 1978, Congress approved the Indian Child Welfare Act of 1978 25 U.S. § 1901-1963, P.L. 95-608, 92 Stat.3069.

In enacting the Indian Child Welfare Act of 1978, 25 U.S.C. §§1901 et. seq., Congress found that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children. ...” Congress also determined that states “...often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families. Congress declared:

It is the policy of this nation to protect the best interest of Indian children and to promote the stability and security of Indian Tribes and families by the establishments of minimum federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.

The Indian Child Welfare Act of 1978 had two overall purposes:

(1) to affirm existing tribal authority to handle child protection cases (including child abuse, child neglect, and adoption) involving Indian children and to establish a preference for exclusive tribal jurisdiction over these cases;

(2) to regulate and set minimum standards for the handling of those cases remaining in state court and in state child social services agencies.

The constitutionality of the Indian Child Welfare Act of 1978 (ICWA) was strongly upheld by the U.S. Supreme Court in Mississippi Choctaw v. Holyfield, 490 U.S. 30 (1989). There have been a series of efforts in recent years to Amend the Indian Child Welfare Act.

The latest federal regulations concerning the Indian Child Welfare Act are available through the Code of Federal Regulations (CFR) - Title 25, part 23.

There was published in the Federal Register, vol. 44, No. 70/Monday, April 23, 1979 a notice entitled Recommended Guidelines for State Courts-Indian Child Custody Proceedings. This notice pertained directly to implementation of the Indian Child Welfare Act of 1978, Pub. L. 95-608, 92 Stat. 3069, 25 U.S.C. 1901 et seq. A subsequent Federal Register notice which invited public comment concerning the above was published on June 5, 1979. As a result of comments received, the recommended guidelines were revised and are now provided in the document, "Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings."

Indian Child Welfare Act Resources

The Practical Guide to the Indian Child Welfare Act has been updated by the Native American Rights Fund (NARF) to include 61 New Full-text Cases through July of 2009 and has Updated Pages. See the Scope of the Guide to learn what has been added to the Internet version since the print publication was published in 2007.

A Best Practice Approach for Tribal Advocates Working with Native Children who have Suffered Abuse Adobe Acrobat Reader is required to view this file suggests an approach to evaluating the needs of children who enter the child protection system and suggests a context for the evaluation that is culturally consistent with most tribal child rearing philosophies.
 
Indian Child Welfare Act; Designated Tribal Agents for Service of Notice: A Notice by the Indian Affairs Bureau on 01/17/2014 - The regulations implementing the Indian Child Welfare Act provide that Indian tribes may designate an agent other than the tribal chairman for service of notice of proceedings under the Act. This notice includes the current list of designated tribal agents for service of notice.

Fostering Connections is a gathering place of information, training and tools related to furthering the implementation of the Fostering Connections law. Specifically, this site aims to connect implementers with the latest information and the best experts and advocates working on these issues.

National Indian Child Welfare Association (NICWA) has served hundreds of American Indian Nations throughout the country by helping to strengthen and enhance their capacity to deliver quality child welfare services. This site includes:

Indian Child Welfare Act; Designated Tribal Agents for Service of Notice: A Notice by the Indian Affairs Bureau on 01/17/2014 - The regulations implementing the Indian Child Welfare Act provide that Indian tribes may designate an agent other than the tribal chairman for service of notice of proceedings under the Act. This notice includes the current list of designated tribal agents for service of notice.

The Native American Rights Fund (NARF) and Casey Family Programs are pleased to announce the launch of ICWA Info, a new online resource for people working on Indian child welfare issues. ICWA Info is designed to provide the public with information and timely updates about all things related to Indian child welfare and the Indian Child Welfare Act (ICWA).

GAO Releases ICWA Report

The General Accountability Office released its long-awaited study on the implementation of the Indian Child Welfare Act (ICWA), calling for greater oversight to ensure states are complying with the landmark law. More than two years in the making, the study was requested by House Majority Leader Tom Delay (R-Texas) and two Republicans, including one with jurisdiction over child welfare programs. The lawmakers wanted to know whether the law works as intended -- to give tribes a greater role in decisions affecting the placement of Indian children.

California Indian Legal Services (CILS) has announced that the California Judges Benchguide: Indian Child Welfare Act (2012 edition) is now available.

Native American Rights Fund online edition of "A Practical Guide to the Indian Child Welfare Act" is intended to answer questions and provide a comprehensive resource of information on the Indian Child Welfare Act (ICWA). Those unfamiliar with ICWA are encouraged to first read the Introduction to the Guide.

National Indian Law Library has an Indian Child Welfare Section with links to organizations that post research resources at their web sites.

The Native American Rights Fund (NARF) and Casey Family Programs are pleased to announce the launch of ICWA Info, a new online resource for people working on Indian child welfare issues. ICWA Info is designed to provide the public with information and timely updates about all things related to Indian child welfare and the Indian Child Welfare Act (ICWA).

The National Indian Child Welfare Association developed an Indian Child Welfare Glossary and ICWA/Child Protective Services Flowchart.

Wabanaki Legal News, a Newsletter of Pine Tree Legal Assistance, has published Indian Child Welfare Act Update (Questions and Answers).

The Utah Department of Human Services offers a Flow Chart for assistance in determining if the ICWA will apply in a state proceeding.

The Northwest Justice Project (NJP) is a not-for-profit statewide organization that provides free civil legal services to low-income people from eight offices throughout the state of Washington, and has Question and Answers to the Indian Child Welfare Act.

The Indian Child Welfare Act - The Need for a Separate Law, by B. J. Jones, discusses the application of the Indian Child Welfare Act: in custody proceedings, including procedural issues facing attorneys and provisions covering foster care, pre-adoptive and adoptive placements, and termination of parental rights.

National CASA Association has posted the following information on the Indian Child Welfare Act:

Remarks of Kevin Gover, Assistant Secretary-Indian Affairs Department of the Interior at the Ceremony Acknowledging the 175th Anniversary of the Establishment of the Bureau of Indian Affairs September 8, 2000.

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