Child Custody Proceedings Under The Indian Child Welfare Act (ICWA): An Overview

Child Custody Proceedings Under The Indian Child Welfare Act (ICWA): An Overview

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epared for Members and Committees of Congress

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In 1978, Congress enacted the Indian Child Welfare Act (ICWA) in response to legislative
findings of harm caused to Indian children, their families, and tribes by the high separation rate of
Indian children from their homes and cultural environments. Congress addressed this situation by
granting Indian tribes and Indian parents an enhanced role in determining when to remove Indian
children from their homes and cultural environments. Specifically, ICWA enumerates provisions
for tribal jurisdiction and tribal intervention in state court proceedings concerning the custody,
adoption, foster care placement, and termination of parental rights of Indian children.
Although there were no proposals to amend ICWA in recent Congresses, the debate over
provisions of ICWA remains an issue of concern. This report provides an overview of some of the
goals and provisions of ICWA, and will be updated as warranted.

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Background ..................................................................................................................................... 1
Coverage.......................................................................................................................................... 1
Jurisdiction ...................................................................................................................................... 2
Exclusive Tribal Jurisdiction..................................................................................................... 2
Concurrent Jurisdiction ............................................................................................................. 3
Judicial Decisions...................................................................................................................... 3
Procedural Protections in State Courts...................................................................................... 4
Voluntary Proceedings ........................................................................................................ 4
Involuntary Proceedings ..................................................................................................... 5
Adoptive Placements................................................................................................................. 5
Legislation................................................................................................................................. 6

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Author Contact Information ............................................................................................................ 6

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Congress enacted the Indian Child Welfare Act (ICWA)2 in 1978 to address the high rate of
separation of Indian children from their homes and cultural environments.3 Prior to 1978, as many
as 25 to 35 percent of the Indian children in some states were removed from their homes and
placed in non-Indian homes.4 This practice of removal fragmented families and threatened the
continued survival of Native American tribes. Respect for the self-determination of tribes
required, in the view of Congress, that tribes be given a greater say in decisions affecting Indian
children.5 In evaluating the perceived biases of state agencies, the House report accompanying the
legislation cited the apparent inability of social workers to accord proper recognition to factors in
Indian environments that tended to mitigate the severe economic deprivations found on many
reservations, deprivations that often served as a basis for state agency neglect findings.6 The
legislative history also indicated that Indian parents often lacked adequate legal representation in
child custody proceedings and were frequently coerced into voluntary waivers of their parental
rights.7 As a result, addressing the situation was thought to require both procedural and
substantive components to promote a policy of stability and security for Indian tribes and families
while also ensuring that the foster and adoptive homes of Indian children reflected the unique
values of Indian culture.8
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ICWA applies to Indian children involved in certain child custody proceedings. For purposes of
ICWA, an Indian child is an unmarried individual under age 18 who is either a member of a
federally recognized Indian tribe or the biological child of a member of a tribe and eligible for
membership in a tribe.9 Membership eligibility is evaluated by tribes and the requirements vary
widely by tribe.10 Under ICWA, Indian custodians include any Indian person with legal custody
of an Indian child under tribal laws, customs, state laws or “to whom temporary physical care,

1 This report was prepared on December 14, 2006, by Kamilah M. Holder, a former legislative attorney in the
American Law Division.
2 P.L. 95-608, 92 Stat. 3069 (1978); codified at 25 U.S.C. §§ 1901 -1963.
3 25 U.S.C. § 1901(4). This embodies a congressional finding that an alarmingly high number of Indian children were
being removed from their homes by nontribal public and private agencies and often placed in non-Indian institutions or
homes.
4 H.Rept. 95-1386, 95th Cong., 2d Sess. 9 (1978).
5 Id.
6 Id.
7 Id.
8 25 U.S.C. § 1902.
9 25 U.S.C. § 1903(4). Under 25 U.S.C. § 1903(8), “‘Indian tribe’ means any Indian tribe, band, nation or other
organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary of
the Interior because of their status as Indians, including any Alaska Native village as defined in section 1602(c) of Title
43.”
10 Cohen’s Handbook of Federal Indian Law § 3.03[2] (Nell Jessup Newton et al. eds., 2005 ed.) [hereinafter Cohen’s
Handbook].
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custody, and control has been transferred by the parent of such child.”11 ICWA applies in the
following child custody proceedings:
• a foster care placement;12
• any action “resulting in the termination of the parent-child relationship”;13
• a pre-adoptive placement that consists of “the temporary placement of an Indian child
in a foster home or institution after the termination of parental rights but prior to or in lieu
of adoptive placement;”14 and
• an adoptive placement, which refers to the final placement of an Indian child for
adoption including any action that results in a final decree of adoption.15
However, “child custody proceeding” does not include an award of custody in a divorce
proceeding; nor does it include a placement based upon an action by the child that would be a
crime if committed by an adult.16
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Among the most important elements of ICWA are its jurisdictional provisions. In enacting ICWA,
Congress recognized that Indian tribes have distinct societal interests in the lives of Indian
children that can be distinguished from that of the parents. In preserving these interests, ICWA
both enhances the jurisdictional reach of tribal courts and provides a right of intervention in state
court proceedings that involve Indian children.17 In part, the act delineates areas of exclusive
tribal jurisdiction and those of concurrent state and tribal jurisdiction.
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Under ICWA, an Indian tribe generally has exclusive jurisdiction over an Indian child who
resides or is domiciled within the tribe’s land.18 Indian tribes also have exclusive jurisdiction over
Indian children who are wards of a tribal court that has previously exercised jurisdiction over
their cases.19 There are two exceptions to the grant of exclusive tribal jurisdiction. Tribal courts
do not have jurisdiction where jurisdiction is “otherwise vested in the State by existing Federal
law.”20 The other exception is the emergency removal of a child who resides or “is domiciled on

11 25 U.S.C. § 1903(6).
12 25 U.S.C. § 1903(1)(i). “Foster care placement” encompasses placements in which the parent or Indian custodian
cannot have the child returned upon demand but the parent’s rights have not been terminated.
13 25 U.S.C. § 1903(1)(ii).
14 25 U.S.C. § 1903(1)(iii).
15 25 U.S.C. § 1903(1)(iv).
16 25 U.S.C. § 1903(1).
17 25 U.S.C. § 1903(12) defines tribal court as “a court with jurisdiction over child custody proceedings and which is
either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian tribe, or any
other administrative body of a tribe which is vested with authority over child custody proceedings.”
18 25 U.S.C. § 1911(a).
19 Id.
20 25 U.S.C. § 1911(a). This exception most often applies in states that have assumed civil jurisdiction over Indian
(continued...)
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the reservation, but temporarily located off the reservation, from his parent or Indian guardian in
order to prevent imminent physical harm.”21 Under ICWA, federal, state and tribal courts must all
afford full faith and credit to the orders and judgments of a tribal court that has exercised
jurisdiction in an Indian child custody proceeding.22
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In child custody proceedings involving Indian children not residing or domiciled on the tribe’s
land, ICWA confers concurrent jurisdiction on tribal and state courts.23 ICWA expresses a
preference for tribal jurisdiction in child custody proceedings involving Indian children. As such,
state court proceedings that address foster care placement or termination of parental rights and
involve Indian children residing or domiciled off the reservation may be transferred to tribal
courts. This transfer shall take place upon the petition of either parent, the Indian custodian or the
child’s tribe unless one of the child’s parents objects, the tribal court declines jurisdiction or good
cause to deny transfer exists.24 The first two exceptions present very little room for judicial
analysis; however, the “good cause” exception is a broader area of judicial interpretation.
Guidelines, issued by the Department of the Interior, state that a party opposing transfer to a tribal
court bears the burden of demonstrating good cause to deny transfer.25 The Guidelines also
provide examples of what constitutes good cause.26
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The only U.S. Supreme Court case to address ICWA dealt with the statutory construction of the
act’s domicile provision and how it was to be interpreted. In Mississippi Band of Choctaw Indians
v. Holyfield, the Supreme Court determined that for purposes of ICWA a child’s domicile at birth
is that of his or her parents at the time of birth.27 In reaching this decision, the Court reasoned that
the purpose of the statute indicated congressional intent to establish uniformity in the application
of ICWA, instead of allowing varied state court definitions of a key term to dictate ICWA
application. Thus, the Court held that an Indian tribe had jurisdiction over twin baby girls whose
parents took care to have the children born off the reservation in order to put the children up for
adoption under state law.
State courts have developed different approaches to addressing general questions of ICWA
applicability and such other concerns as the grounds for invoking the “good cause” exception to
transfer. For example, some state court judicial decisions scrutinize the level of contact between

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reservations under laws such as Public Law 280 (25 U.S.C. §1321-25). (Public Law 280 is the popular name of P.L. 83-
280, as amended, a law conferring jurisdiction over activities in most of the Indian country in specified states to state
courts.) However, in these circumstances, 25 U.S.C. §1918 authorizes tribes to retake jurisdiction over child custody
proceedings upon approval by the Secretary of the Interior.
21 25 U.S.C. § 1922.
22 25 U.S.C. § 1911(d).
23 25 U.S.C. § 1911(b).
24 25 U.S.C. § 1911(b).
25 Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (November 29, 1979).
26 See id. at 67,591 (Guideline C.3(b)(i) and (iii)).
27 490 U.S. 30 (1989).
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an Indian child and the Indian tribe or reservation, while other courts engage in a “best interests
of the child” analysis in assessing possible reasons for transfer.28 Other courts have dealt with the
issue of applying the judicially crafted “existing Indian family exception” with varying results.29
›˜ŒŽ?ž›Š•ȱ›˜?ŽŒ?’˜—œȱ’—ȱ?Š?Žȱ˜ž›?œȱ
In expanding the ability of tribes to strengthen and preserve Indian families, ICWA not only
enhances tribal jurisdiction but also provides comprehensive procedural protections for Indian
tribes, parents and custodians throughout state court proceedings. For example, where a state
court knows or has reason to know at the outset of an involuntary custody proceeding that the
child at issue is an Indian child, ICWA requires that the party seeking termination of parental
rights or foster care placement notify the child’s parent or Indian custodian and tribe.30 Notice
must be given at least ten days before the advancement of the state proceedings.31 Tribes must be
notified of their unconditional right to intervene in the state court proceeding and their right to
examine all relevant documents as well as their ability to obtain a delay of the proceedings.32
These provisions are all aimed at ensuring that parents, custodians and tribes are aware of their
rights under ICWA and are given adequate time to exercise these rights.
Additional provisions, applicable in both voluntary and involuntary cases, are also intended to
ensure that Indian parents, custodians and tribes are not misled or coerced into losing their rights
to rear Indian children. As such, cases that proceed in state courts are subject to a number of
procedural protections, whether the proceeding is voluntary or involuntary. Voluntary proceedings
consist of tribal member parents choosing termination of parental rights and adoption or foster
care placement of their child. Involuntary proceedings involve state attempts to terminate parental
rights or place Indian children in foster care. Tribes may intervene in both involuntary and
voluntary proceedings. Also, an Indian child’s tribe, parent, Indian custodian or an “Indian child
who is the subject of an action for foster care placement or termination of parental rights under
state law” may seek to invalidate the action upon a showing that the action violated ICWA
provisions.33
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For any voluntary placement to be valid, the consent of the Indian parent must be in writing and
executed before a judge of a court of appropriate jurisdiction. The judge must certify that the
consequences of the action to be undertaken are explained to the parent in a language that the
parent understands. The consent to the termination of parental rights cannot be executed until

28 Cohen’s Handbook § 11.03.
29 Compare, e.g., In re Adoption of Baby Boy L, 643 P.2d 168 (Kan. 1982) (court did not apply provisions of ICWA
over the objections of a child’s Indian father and his tribe after finding that the child had no ties to his Indian father or
the tribe and was not part of an existing Indian family) and In re Baby Boy C, 805 N.Y.S.2d 313, 27 A.D.3d 34 (N.Y.
2005) (court declined to adopt the “existing Indian family exception” on the grounds that it was inconsistent with the
provisions of ICWA).
30 25 U.S.C. § 1912(a).
31 Id.
32 Id.
33 25 U.S.C. § 1914.
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after the child is 10 days old.34 Indian parents can revoke their consent at any time during their
child’s foster care placement or before a decree of termination or adoption has been entered.35
Upon revoking consent, the parent would be entitled to the immediate return of the child.
However, in cases of adoption where an order accepting the voluntary termination of parental
rights has been entered, then the parent may not revoke consent.
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First, the party seeking foster care placement or the termination of parental rights must provide
notice of the proceedings to the parent or Indian custodian and the child’s tribe.36 ICWA gives
indigent parents or Indian custodians the right to court-appointed counsel in any involuntary
removal, placement or termination proceeding.37 In involuntary proceedings, the parties also have
the right to examine all reports or other documents filed with the court on which any decision
may be based.38 Furthermore, a state court cannot order an involuntary foster care placement
unless it determines that the parent’s or Indian custodian’s continued custody of the child is likely
to result in serious emotional or physical damage to the child.39 The determination must also meet
the clear and convincing standard and be based on evidence that includes testimony from at least
one qualified expert witness.40 In order to terminate parental rights or initiate foster care
placement in regard to an Indian child, a state court must ensure that “active efforts” have been
taken to provide remedial services and rehabilitative programs to Indian parents and custodians in
order to prevent the breakup of the Indian family.41 The state of the law, as reflected in a recent
Maryland opinion, is that active efforts involve assisting a parent through the steps of a
rehabilitation program; simply requiring a parent to implement a program on his or her own is
merely a “reasonable” effort and fails to satisfy ICWA.42
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ICWA also addresses adoption. ICWA establishes an order of preference for adoptive placement
of an Indian child under state law, “in the absence of good cause to the contrary,” that looks to
placing a child with extended family members, other members of the tribe or Indian families.43
Also, ICWA establishes a placement preference plan to be followed in foster care and preadoptive
placements.44 Tribes may establish a different order of preference by resolution, to be followed in
the aforementioned placements.45

34 25 U.S.C. § 1913(a).
35 25 U.S.C. § 1913(b).
36 25 U.S.C. § 1912(a).
37 25 U.S.C. § 1912(b).
38 25 U.S.C. § 1912(c).
39 25 U.S.C. § 1912(e).
40 25 U.S.C. § 1912(f).
41 25 U.S.C. § 1912(d).
42 In re Nicole B. and Max B., 927 A.2d 1194 (Md. App., 2007). See also A.M. v. State, 945 P.2d 296 (Alaska 1997); In
re Michael G., 63 Cal. App. 4th 700 (Cal App. 1998).
43 25 U.S.C. § 1915(a).
44 25 U.S.C. § 1915(b).
45 25 U.S.C. § 1915(c).
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śȱ

‘’•?ȱžœ?˜?¢ȱ›˜ŒŽŽ?’—?œȱ—?Ž›ȱ?‘Žȱ —?’Š—ȱ‘’•?ȱŽ•?Š›ŽȱŒ?ȱǻ ǼǱȱ—ȱŸŽ›Ÿ’Ž ȱ
ȱ
Ž?’œ•Š?’˜—ȱ
ICWA issues have been raised in earlier Congresses,46 and may recur in the 111th Congress,
although there were no legislative proposals to amend the act in either the 110th or the 109th
Congress.

ž?‘˜›ȱ˜—?ŠŒ?ȱ —?˜›–Š?’˜—ȱ

M. Maureen Murphy
Yule Kim
Legislative Attorney
Legislative Attorney
mmurphy@crs.loc.gov, 7-6971
ykim@crs.loc.gov, 7-9138

46 Marcie Yablon, The Indian Child Welfare Act Amendments of 2003, 38 Fam. L.Q. 689 (2004-2005) (discussing
proposals to, e.g, address judicial decisions that put certain children beyond the reach of the ICWA because they were
not part of an “existing Indian family” ).
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