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FAQ Topic 21. Application
of standards higher than ICWA requirements
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.
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Court Opinions
25 U.S.C. § 1921. Higher State or Federal standard applicable
to protect rights of parent or Indian custodian of Indian child
In any case where State
or Federal law applicable to a child custody proceeding under State or Federal
law provides a higher standard of protection to the rights of the parent or
Indian custodian of an Indian child than the rights provided under this subchapter,
the State or Federal court shall apply the State or Federal standard.
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.
21.1
- Do state and federal statutes that provide higher standards of protection to the rights of parents or an Indian custodian apply in ICWA cases?
Yes. The Indian Child Welfare Act (ICWA) 1921 specifically provides that where State or Federal law applicable to a child custody proceeding . . . provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under this subchapter, that standard shall be applied. For example, where Michigan law contained a more stringent notice requirement than ICWA to ensure that inquiry and notification are performed, that standard applied. In
re Elliott, 554 N.W.2d 32, 38 (Mich. Ct. App. 1996). Minnesota has enacted more stringent laws that an individual must meet to qualify as an expert witness possessing expertise in Indian child-rearing practices. See MINN. DEPT OF HUMAN SERVS., MINNESOTA SOCIAL SERVICES MANUAL, XIII-3586 (1999); In
re D.S.P., 480 N.W.2d 234 (Wis. 1992). Thus, the practitioner should consult federal, state and tribal law to determine if it contains more stringent requirements, especially in a state that has enacted its own version of the ICWA, or parts of it.
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21.2 - Does the protection of 1921 extend to a tribe?
Yes. Though not specifically mentioned in 1921, at least one court has held that where higher standards are present in state statutes, such protection extends to tribes. Cherokee
Nation v. Nomura, 2007 OK 40, 160 P.3d 967.
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21.3 - What if a state has its own state ICWA?
A number of states have enacted their own version of the requirements of ICWA and thus state law may provide higher standards of protections or notice provisions than contained in the ICWA. The practitioner should check state law in this regard.
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21.4 - Do
a state's error preservation rules apply in an ICWA proceeding?
Some state courts have ruled that their error preservation rules apply in an ICWA proceeding. See, e.g., In
re J.D.B., 584 N.W.2d 577 (Iowa App. 1998); In
re Pedro N., 41 Cal. Rptr. 2d 819 (Ct. App. 1995). But others disagree. See, e.g., In
re L.A.M., 727 P.2d 1057 (Alaska 1986). A party or practitioner is well-advised to object to any error based on the ICWA at the trial court level, otherwise a failure to timely object may be considered a waiver or harmless error even where the challenge is brought under 1914.
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