Enacted by Congress in 1978, the Indian Child Welfare Act (ICWA) is federal legislation intended to protect Indian families by preserving the ties between Indian children and their tribes. Within the text of the ICWA itself, Congress expressly declared that "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children... ."
Background
Prior to the enactment of the ICWA, many Indian children had been taken from their families, often for unjustified reasons, by non-tribal child custody agencies. Once removed from their families, these children were often placed in non-Indian foster and adoptive homes and institutions.
According to Congress, the ICWA was drafted in response to the states' failure, in Indian child custody proceedings, "to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families."
Basic Provisions
In broad terms, the ICWA sets forth minimum federal standards for the removal of Indian children from their families and their subsequent placement in foster or adoptive homes. The ICWA also assists Indian tribes in the operation of child and family service programs.
With certain exceptions, the ICWA grants Indian tribes exclusive jurisdiction over child custody proceedings involving Indian children who reside within the tribe's reservation. In situations where state law conflicts with the ICWA, the ICWA takes precedence over state law.
The ICWA applies to "child custody proceedings," defined to include:
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Foster care placement - any action where an Indian child is removed from its parent or custodian for temporary placement in a foster home or like institution. In this situation, the parental rights have not yet terminated, but the parent or custodian cannot have the child returned upon demand.
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Termination of parental rights - any action resulting in the termination of the parent-child relationship.
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Pre-adoptive placement - the period of time after the termination of parental rights, but prior to, or in lieu of, adoptive placement. During this time, the Indian child is typically temporarily placed in a foster home or institution.
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Adoptive placement - the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.
Further, "Indian child" is defined to mean any unmarried person who is under age 18 and is either:
Preferences
In situations where an Indian child is accepted for foster care or pre-adoptive placement, the ICWA generally requires that a preference shall be given, in the following order, to a placement with:
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A member of the child's extended family
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A foster home licensed, approved or specified by the Indian child's tribe
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An Indian foster home licensed or approved by an authorized non-Indian licensing authority
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A similar children's institution approved by an Indian tribe
