|ICWA Guide Online Home | 1. Application|
ICWA Topics1. Application
3. Who has rights under the Act
6. Emergency removal
8. Role of tribal courts
9. Recognition of tribal law
10. Tribal-state agreements
11. Foster placement & removal
12. Active efforts requirement
13. Termination of parental rights
14. Expert witnesses
15. Access to records
17. Voluntary proceedings
19. Application of other fed. laws
21. Standards higher than ICWA
Topic 1. Application
Disclaimer: A Practical Guide to the Indian Child Welfare Act is intended to facilitate compliance with the letter and spirit of ICWA and is intended for educational and informational purposes only. It is not legal advice. You should consult competent legal counsel for legal advice, rather than rely on the Practical Guide.
Applicable Federal Law
25 U.S.C. § 1903. Definitions
(1) “child custody proceeding” shall mean and include—
(4) “Indian child” means 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 . . .
Disclaimer: The above provisions of the Indian Child Welfare Act are set forth to facilitate consideration of this particular topic. Additional federal, state or tribal law may be applicable. Independent research is necessary to make that determination.
1.1 - When does the ICWA apply?
Only two prerequisites must be satisfied for the Indian Child Welfare Act (ICWA) to apply. The first requirement is the presence of an Indian child as defined by 1903(4). That section defines an Indian child as an 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 . . . . The second requirement is that the child custody proceeding be one as defined by 1903(1); that is, a foster care placement; termination of parental rights; pre-adoptive placement; or adoptive placement.
1.2 - What are the exceptions to ICWA’s application?
After defining those proceedings to which the ICWA does apply, the Act states: [s]uch term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents. 25 U.S.C. 1903(1). Thus, ICWA expressly provides for only two exceptions to its applicability: certain juvenile criminal proceedings based on a status crime, such as underage drinking which only a minor can commit, and divorce cases. There are no other exceptions.
Even so, a Montana court excluded an intra-family custody dispute finding that it was not a child custody proceeding because the Act is not directed at disputes between Indian families regarding custody of Indian children; rather, its intent is to preserve Indian cultural values under circumstances in which an Indian child is placed in a foster home or other protective institution. In re Bertelson, 617 P.2d 121 (Mont. 1980). See also In re Sengstock, 477 N.W.2d 310 (Wis. Ct. App. 1991); Comanche Nation v. Fox, 128 S.W.3d 745 (Tex. App. 2004). Other courts have expressly rejected the Bertelson analysis as contrary to the express provision of the Act enumerating which proceedings are excluded; that is, certain juvenile crimes and divorce cases. All other proceedings involving the custody of an Indian child fall within the ambit of the Act. Comanche Indian Tribe of Okla. v. Hovis (Hovis I), 847 F. Supp. 871 (W.D. Okla. 1994); D.J. v. P.C., 36 P.3d 663 (Alaska 2001); J.W. v. R.J., 951 P.2d 1206 (Alaska 1998); In re D.A.C., 933 P.2d 993 (Utah Ct. App. 1997); In re Q.G.M., 808 P.2d 684 (Okla. 1991); In re A.K.H., 502 N.W.2d 790 (Minn. Ct. App. 1993); In re S.B.R., 719 P.2d 154 (Wash. Ct. App. 1986); In re Jennifer A., 127 Cal. Rptr. 2d 54 (Ct. App. 2002); In re Lindsay C., 280 Cal. Rptr. 194 (Ct. App. 1991); In re Crystal K., 276 Cal. Rptr. 619 (Ct. App. 1990). Another court applied ICWA without deciding the intra-family issue because of the parties implicit assumption that ICWA applied to the situation. In re Anderson, 31 P.3d 510 (Or. Ct. App. 2001).
1.3 - What is the so-called Existing Indian Family exception (EIF)?
The Existing Indian Family exception (EIF) is a judicially-created exception to the ICWA that originated in In re Baby Boy L., 643 P.2d 168 (Kan. 1982). In that case, the court held that the ICWA did not apply to an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be. The court interpreted the ICWA as being only concerned with removal of Indian children from an existing Indian family unit. Id. at 175. Although narrowly interpreted in subsequent cases, a Washington court required that in addition to an Indian child being removed from an Indian family, the child was to be returned to an existing Indian family unit or environment. In re Crews, 825 P.2d 305, 310 (Wash. 1992). The Crews decision appears to have been statutorily superseded. See WASH. REV. CODE 26.10.034(1), 26.33.040(1), 13.34.040(3) (2004).
The EIF exception has been raised to a constitutional level by two appellate districts of California (Second and Fourth). In re Bridget R., 49 Cal. Rptr. 2d 507 (Ct. App. 1996); In re Santos Y., 112 Cal. Rptr. 2d 692 (Ct. App. 2001); In re Alexandria Y., 53 Cal. Rptr. 2d 679 (Ct. App. 1996). These cases hold that the child and his or her parents, and maybe even the extended family when involved, must have a significant social, political and cultural relationship to their tribal culture to uphold the constitutionality of the ICWA under federal law.
The EIF, however, has been implicitly and explicitly rejected by courts and legislatures in a number of states that have addressed the issue.
The EIF exception still has vitality in the two California appellate districts (Second and Fourth) that have adopted a constitutionally-based EIF exception and one division within the Second District that has adopted it as an interpretation of ICWA. The exception is followed in Kentucky, Missouri and Tennessee (an unreported decision) which have no federally recognized tribes. In Kansas and Louisiana, whose courts have refused to apply the EIF exception following the one decision upholding it, the validity of the exception may be in doubt. In re S.M.H., 103 P.3d 976 (Kan. Ct. App. 2005); In re J.J.G., 83 P.3d 1264 (Kan. Ct. App. 2004); In re A.P., 961 P.2d 706 (Kan. Ct. App. 1998); In re H.A.M., 961 P.2d 716 (Kan. Ct. App. 1998); In re H.D., 729 P.2d 1234 (Kan. Ct. App. 1986); Owens v. Willock, 29-595 (La. App. 2 Cir. 2/26/97); 690 So. 2d 948.
At the Federal level, the Supreme Court in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), implicitly rejected the EIF exception when it interpreted the ICWA to apply to Indian children who were placed for adoption and who never physically lived in an Indian home or on an Indian reservation prior to being placed with non-Indian prospective adoptive parents. Id. at 54. The Court made a threshold determination that the ICWA applied to these children. Id. at 42. It found that the state court proceeding at issue was an adoptive placement as defined by 1903(1)(iv) of the Act and that the children involved were Indian children as defined by 1903(4) of the Act even though they had never lived in an Indian home or on an Indian reservation. The Court relied on the plain language of the ICWA in its application to the facts.
1.4 - Who is an Indian Child under the ICWA?
An Indian child is an 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(4). A key link to this definition is the meaning of Indian tribe.
1.5 - What is an Indian tribe under ICWA?
Indian tribe is defined as 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 because of their status as Indians including any Alaska Native village as defined in section 1602(c) of title 43. 25 U.S.C. 1903(8). It means only federally recognized tribes. Canadian tribes, and other foreign Indian tribes, and non-federally recognized tribes are therefore excluded from its coverage.
From time to time, the Secretary of the Interior publishes a list of federally recognized tribes eligible for federal services and benefits. Indian Entities Recognized and Eligible to Receive Services From the United States Bureau of Indian Affairs. Most courts use this list to determine whether the Indian childs tribe, and thereby its children, are protected by the Act.
The Secretary, from time to time, will federally acknowledge an Indian tribe under the federal acknowledgment regulations contained at 25 C.F.R. Part 83 (2007). A newly-acknowledged tribe will not appear on the list of federally recognized tribes until the Secretary updates the list. If in doubt, a practitioner should contact the Office of Federal Acknowledgment (OFA), Bureau of Indian Affairs (BIA), Washington, D.C. Also, OFA keeps a list of non-federally acknowledged tribes which have filed a letter of intent to file a petition for federal acknowledgment or have filed a petition. The practitioner may want to consult this list to determine if claimed ancestry of the parent or child is to a non-federally recognized tribe.
In addition, Congress will from time to time reaffirm or restore government-to-government relations with a tribe whose relationship was terminated during the termination era of the 1950s when the United States severed its government-to-government relationship with a number of Indian tribes and thereby withdrew eligibility for federal services provided to Indians because of their status as Indians. Also, the Congress will at times federally acknowledge Indian tribes by legislation. See, e.g., Federal Recognition of Mashantucket Pequot Tribe, 25 U.S.C. 1758 (2000). The practitioner should contact the Assistant Secretarys Office of the Bureau of Indian Affairs, Washington, D.C.
1.6 - Who determines membership or eligibility for membership?
1.7 - Who has the burden to prove an Indian child is involved?
The party seeking to establish the application of the ICWA has the initial burden to establish a prima facie case that an Indian child may be involved, although all parties and the court have a continuing obligation to inquire as to the status of the child. See, e.g., COLO. REV. STAT. 19-1-126 (2002); IOWA CODE 232B.4 (2000). There is no one proof of membership, although courts generally agree that an Indian childs enrollment in an Indian tribe is conclusive proof of membership. Tribal enrollment however, is not the only means of establishing membership. In re T.L.G., 108 P.3d 156 (Wash. Ct. App. 2005). Some tribes automatically include a person as a member if the person descended from a tribal member who was listed on the tribal rolls as of a specific date. In re Arianna R.G., 2003 WI 11, 259 Wis. 2d 563, 657 N.W.2d 363. Thus, in some instances, courts have remanded for proper notice even where the parent offered no proof of membership and was not enrolled in a tribe. In re Gerardo A., 14 Cal. Rptr. 3d 798 (Ct. App. 2004); Dwayne P. v. Superior Court, 126 Cal. Rptr. 2d 639 (Ct. App. 2002).
A tribe may determine that a child is not enrollable but later change its determination and enroll the child. In re E.S., 964 P.2d 404 (Wash. Ct. App. 1998). Once membership, or eligibility for membership, is established, and the ICWA is applied and accepted as applicable by all the parties, a party may not later change its mind and take a contrary position on appeal. In re R.L., 961 P.2d 606 (Colo. Ct. App. 1998); In re N.S., 474 N.W.2d 96 (S.D. 1991).
1.8 - What if the childs Indian heritage is uncertain?
One purpose of ICWA notice is to enable the tribe or BIA to investigate and determine whether the minor is an Indian child. In re Gerardo A., 14 Cal. Rptr. 3d 798 (Ct. App. 2004). Some information relating to Indian heritage must be provided to the court or entity seeking placement for notice to be sent to a tribe(s) or BIA area office. If the tribes identity is unknown, notice must be sent to the BIA as agent for the Secretary of the Interior. In re Antoinette S., 129 Cal. Rptr. 2d 15 (Ct. App. 2002). See also FAQ 4.11. An unsubstantiated belief a child has Indian heritage is not conclusive to establish such heritage. See, e.g., In re Arianna R.G., 2003 WI 11, 259 Wis. 2d 563, 657 N.W.2d 363.
The BIA Guidelines are helpful in determining under what circumstances a court has reason to know that a child is an Indian child under the ICWA. The Guidelines describe the following circumstances under which a state court has reason to believe a child involved in a child custody proceeding is an Indian child:
Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,586 (Nov. 26, 1979) (guidelines for state courts).
1.9 - What if more than one tribe has an interest in the Indian child?
In this situation, a court is called upon to determine which tribe has more significant contacts with the Indian child, although notice should be sent to each tribe regardless of the final determination. The BIA Guidelines are helpful in guiding a court to make its determination. The Guidelines list at least eight factors for a court to consider in determining which tribe has the most significant contacts for the purpose of designating the Indian childs tribe under the ICWA, especially for the purpose of transfer of jurisdiction. See Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,587 (Nov. 26, 1979) (guidelines for state courts).
For the tribe that has the lesser contacts, the Guidelines provide that it still could be granted a right of intervention without undermining the right of the tribe with greater contacts. The tribe with lesser contacts could also be afforded the ability to serve as a placement preference under 1915 the Act.
In South Dakota, a state court determined jurisdiction by looking at the childs domicile and the tribe with whom the child had the most significant contacts. The state court found jurisdiction vested in the tribe on whose reservation the child was domiciled and with whom the child had the most contacts, and not the tribe in which the child was enrolled. Cf. In re T.I., 2005 SD 125, 707 N.W.2d 826.
In emergencies, the tribal court that begins to handle a case should be recognized by the other tribal court to have priority jurisdiction until the tribal courts can sort out which court has primary jurisdiction.