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June 15, 1995
Smoke Signals
What is the Indian Child Welfare Act?
The Indian Child Welfare Act is a federal law passed by Congress in 1 978 to protect Indian fami
lies from the loss of their children. The Act was passed because Congress found that many children
were being taken from their families by courts and welfare departments and placed in non-Indian
homes and institutions. The Act requires state courts and welfare departments to respect the need for
Indian children to grow up within their culture.
When does the Act apply?
If an Indian child is involved, then the Act applies to the following situations:
I .) Whenever the welfare department or some other person starts a court case which
might result in Indian children being removed from their home. Usually
this is called a dependency or neglect case.
2.) Whenever the welfare department, or some other per
son, starts a court case to take away parents' rights to their
children.
3. ) Whenever an Indian child is charged in Juve
nile Court with doing something wrong which
would not be considered criminal if an adult did
it; for example, skipping school and running away.
4. ) Whenever an Indian child is moved from
one foster home or institution to another foster
home or institution.
5. ) Whenever an Indian child is placed for adoption.
6.) Whenever Indian parents or custodians want to
voluntarily place their children in foster care or give up
their parental rights.
If an Indian child was adopted in the past, can the Indian parents
challenge the adoption?
In some cases, yes. The Act says that when a voluntary adoption has occurred less than two years
ago, the parents can have the adoption set aside -- the parent shows that fraud, trickery, or undue
pressure was used to obtain the parent's consent to the adoption. ,
What can be done if a state court or welfare department
does not follow the Act?
In that case, an Indian child, parent, custodian, or tribe may bring legal action to change a state
court decision, or the actions of the welfare department. If you think your children
have been taken from you unfairly, or if someone is threatening to take
your children, contact your local tribe, Indian center, legal ser
vices office or public defender's office.
" The Act requires
state courts and welfare
departments to respect the need
for Indian children to grow up
within their culture. "
Docs the Act help Indian families before
they end up in court?
Yes. Many Indian centers and most tribes already
have programs to assist Indian families, including
those going to court.
Who is protected by the Act?
The Act protects Indian children, parents of Indian children, people who have
custody and are taking care of an Indian child, and the child's tribe.
An "Indian Child" is defined as any unmarried person under the age of eighteen who is either a
member of an Indian tribe or is eligible for tribal membership.
How does the Act work?
When a court case falls under the law, the Act requires the court to notify the Indian Child's
parents, the tribe andor the people who are taking care of the child. The tribe can then ask the court
to transfer the child's case to tribal court, if the parent's don't object, or the tribe can take part in the
slate court case. The state court must consider the arguments of the tribe.
What is required before a child can be taken from an Indian home?
The police can only remove children from their home if it can be shown that the children are in
physical danger; this removal may continue only as long as is necessary to prevent immediate harm
to the child. The child will be returned home as soon as it is safe. If it is not an emergency, the court
must be shown that:
1 . ) The welfare department has tried to help the family but there's been no change;
2. ) It is clear that the child will suffer if the child remains with the parents (an expert in Indian life
must be one of the people to give the court information).
Can the courts permanently take Indian children away from their parents?
Yes.
When children are placed outside their home, must preference
be given to Indian families?
Yes. The court and welfare departments must try to place the child accordingly:
1. ) first with family;
2. ) second, w ith a family approved by the child's tribe;
3. ) if that's not possible, then with an Indian foster home which is state approved;
4. ) when no Indian foster home is available the child can be placed in an Indian operated institu
tion; 5. ) and last, if there is no other choice, the child can be placed in a non-Indian home or institution.
Do the same standards apply when children are placed for adoption?
Yes. The court and welfare department must try to place the child;
1. ) first with family;
2. ) if that's not possible, then other Indian families have priority;
3. ) and last, if there is no Indian family the child can be placed in a non-Indian home.
How does the Act apply when parents voluntarily consent to adoption?
If the child is placed for adoption, parents can change their minds and get the child back at any
time before a court ordered their rights to be ended, or before the child is adopted.
What is required under the Act before
a child can be permanently removed
from an Indian home?
Except for emergencies, a child may not be taken away
from hisher parents without a showing supported by clear
and convincing evidence including expert witnesses who qualify
as being knowledgeable in Indian customs and social relations, that
the child will suffer emotional or physical damage if the child remains with
the parents. If parental rights are to be "terminated" that is, the rights to the child perma
nently lost, the court must find beyond a reasonable doubt that the child will be physically or emo
tionally damaged by staying with the parents. -.-: ;'; .-; ... ; , ',
What standards must the court consider in placing the child?
In making its decision regarding placement, the state court must consider only the Indian commu
nity standards of a suitable home and not the standards of the non-Indian community. This is to
prevent the state from finding that an Indian home is inadequate because it isn't similar to a white
middle-class home.
What additional information should an Indian Child
Welfare worker know?
In situations involving involuntary placement proceedings of an Indian child or a child which the
court has reason to believe is Indian, the Act requires the state court to notify the Indian child's
parents, custodian, and tribe. If the tribe is not known, the court must notify the regional office of the
Bureau of Indian Affairs in order to determine the child's tribal membership. The notice must be in
writing, indicating the tribe's right to intervene and it must allow at least ten (10) days after delivery
for the tribe to respond. The tribe may have an additional twenty (20) days to respond if it is so
requested.
Once the tribe is notified, the tribe may "transfer jurisdiction", take control of the case itself if the
parents don't object, or "intervene". If the tribe intervenes the state court can proceed with the case,
but the tribe's arguments and desires must be considered by the state court, and the state court must
follow strict guidelines to ensure that whatever action is taken, primary consideration is given to
maintaining the child's Indian cultural environment.
All parties are entitled to see any reports which the state court may use in making its decision.
Additionally, the state court is required to notify the parent, and Indian guardian of their right to an
attorney, and that the court will appoint an attorney free of charge if they cannot afford to pay for one.
When WON'T the Indian Child Welfare Act apply?
The Act does not apply in cases where the child is charged with criminal wrongdoing and in child
custody disputes between parents in a divorce action.
This information is provided to the community by the Tribal Family
Action Program (TFAP) of the Confederated Tribes of Grand Ronde.
For additional information and assistance, please contact one of three
Family and Children's Services ICW Caseworkers at 1-800-775-0095.
Mychal S. Childers - ext. 2045
Bonnie Malek -- ext. 2038
Darrel Kipp - ext. 2037