The INDIAN CHILD WELFARE ACT
Grudging Compliance or Constructive Implementation?
Child Abuse and Neglect: Essential Information for
Practicing & Presiding in Child Welfare Cases
Albuquerque, New Mexico
April 23-24, 2009
JUDGE JOHN J. ROMERO, JR.
albdjjr@nmcourts.gov
Children & Families
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OVERVIEW
 History and Purpose of ICWA
 When Does ICWA Apply?
 Relationship between ASFA & ICWA
 Effectiveness?
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History and Purpose of ICWA
 From the late 1800’s to the mid-1970s,
Indian families were subjected to various
forces which negatively impacted the
family unit:
 Allotment Act
 Assimilation
 Termination
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History and Purpose of ICWA
By the 1960’s
 recognition that Indian families were being
broken apart at an alarming rate
 state social service departments removing
children from their homes and communities
 Missionaries and social workers placing Indian
children in non-Indian foster and adoptive
homes
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History and Purpose of ICWA
 Prior to ICWA
 Indian children were removed from their
homes and placed in foster and adoptive
placements and institutional settings at
rates far greater than non-Indian
children
 Adoption rates for Indian Children were
8 times higher than for non-Indians, and
 90% of adoptions were in non-Indian
homes
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History and Purpose of ICWA
Studies in 1969 and 1974
showed that
 25% to 35% of all Indian children
had been
 separated from their families and
 placed in adoptive families, foster care,
or institutions
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History and Purpose of ICWA
 Studies –
cont’d
 in one state
 1 in 8 Indian children under the age of 18 was
in an adoptive home
 during 1971-1972 nearly 1 in every 4 infants
under 1 year of age was placed for adoption.
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History and Purpose of ICWA
 Studies –
cont’d
 In another state, the risk of being separated
from their children was 1,600% greater for
Indians
 In a state where Indian children made up only
7% of the population, 40% of all adoptions
were of Indian children
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ICWA - 1978
CONGRESS ENACTED ICWA TO
PREVENT THE BREAK-UP OF
INDIAN FAMILIES
 To protect the best interests of
Indian children
 To promote the stability and security
of Indian tribes and families
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ICWA - 1978
 WHY?
Congress found that:
 An alarmingly high percentage of Indian families
are broken up by the removal, often
unwarranted, of their children…by non-tribal
public and private agencies…. And

States…have often failed to recognize the
essential tribal relations of Indian people and
the cultural and social standards prevailing in
Indian communities and families.
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ICWA - 1978
ICWA’s three objectives:
1. Keep Indian children with their families.
2. Defer to tribal judgments and decisions
about custody of Indian children.
3. If Indian children must be removed from
their families, they should be placed with
members of their extended family or
members of their Tribe.
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 ICWA applies when an
Indian child is involved in a
child custody proceeding.
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INDIAN CHILD
“Indian child” means
 an unmarried person under 18
who is either:
 a member of an Indian tribe; or
 eligible for membership in an Indian
tribe and is the biological child of a
member of an Indian tribe.
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CHILD CUSTODY PROCEEDING
“Child custody proceeding”
means:




Foster care placement (any action to remove an
Indian child from its parent or Indian custodian
where the parent or Indian custodian cannot
have the child returned upon demand)
Termination of Parental Rights
Preadoptive placement (post-TPR)
Adoptive placement
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Exclusive Jurisdiction
25 U.S.C. 1911
Tribal Courts:
 have exclusive jurisdiction over any
child custody proceeding involving
an Indian child who resides or is
domiciled on an Indian reservation.
 retain exclusive jurisdiction over
any child who is a ward of the tribal
court regardless of the child’s
residence or domicile.
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Transfer of Proceedings
25 U.S.C. 1911
A state court shall transfer to tribal court a
foster care placement or TPR proceeding
involving an Indian child not domiciled or
residing within the reservation of the child’s
tribe when:
 there is no good cause to the contrary,
 neither parent objects, and
 the tribal court does not decline jurisdiction.
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Notice Requirements
25 U.S.C. 1912
In any involuntary proceeding in a State
court, the party seeking foster care of
or TPR to an Indian child shall notify:
 the parent or Indian custodian AND
 the Indian child’s tribe
about
 the pending proceedings AND
 the right to intervene.
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Right to Intervene
25 U.S.C. 1911
In any state court proceeding for the foster
care placement or TPR of an Indian
Child, the child’s Indian custodian and
tribe have:
 the right to intervene
 at any point in the proceeding.
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Active Efforts
25 U.S.C. 1912(d)
Any party seeking foster care placement
or TPR of an Indian child shall satisfy
the court that:
 active efforts have been made to:
 provide remedial services &
rehabilitative programs designed to
prevent the break up of the Indian
family; and
 these active efforts have been
unsuccessful.
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Active Efforts
25 U.S.C. 1912(d)
Active efforts shall:
 take into consideration the prevailing
social and cultural conditions and
way of life of the Indian child’s tribe,
and
 involve and use the available
resources of the extended family, the
tribe, Indian social service agencies and
individual Indian care givers (such as
medicine men).
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Active Efforts and ASFA
ASFA does NOT alter ICWA’s active efforts
requirement.
 Even where ASFA may relieve the State from
proving reasonable efforts (e.g., when
aggravated circumstances exist), active efforts
must be proved.
 ACTIVE EFFORTS ARE REQUIRED IN EVERY
ICWA CASE.
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Foster Care Placement:
Clear & Convincing Evidence
25 U.S.C. 1912
No foster care placement in the
absence of:
 clear and convincing evidence,
 including testimony of qualified expert
witnesses,
 that the continued custody is likely to result
in serious emotional or physical damage
to the child.
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Termination of Parental Rights:
Beyond a Reasonable Doubt
25 U.S.C. 1912
No TPR in the absence of evidence:
 beyond a reasonable doubt,
 including testimony of qualified expert
witnesses,
 that continued custody is likely to result in
serious emotional or physical damage
to the child.
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Qualified Expert Witness
BIA guidelines identify three types of experts:

A member of the Indian child’s tribe who is
recognized by the tribal community as knowledgeable
in tribal customs as they pertain to family or
organization in childrearing practices.

A lay expert witness having substantial experience
in the delivery of child and family services to Indians
and an extensive knowledge of prevailing social and
cultural standards and childrearing practices within
the Indian child’s tribe.

A professional having substantial education and
experience in the area of his or her specialty.
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Priorities for Placement
25 U.S.C. 1915
Absent good cause to the contrary, a State
court shall follow these preferences for
the foster care placement of an
Indian child:
1st Extended Family
2nd Foster home licensed by Tribe
3rd Indian foster home licensed by State
4th Institution approved by Tribe
5th Other foster homes licensed by State
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Voluntary Consent
25 U.S.C. 1913
When a parent or custodian voluntarily
consents to foster care placement or
TPR, it must be in writing and clear
that the parent understands what
they are agreeing to.
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Withdrawal of Consent
25 U.S.C. 1913
The parent or Indian custodian may withdraw
consent to:



the Indian child’s placement in foster care at any
time and the child must be returned.
voluntary TPR at any time prior to entry of a
final decree of voluntary termination or
adoption.
voluntary adoption within two years of entry of
final decree of adoption when the court finds
fraud or duress
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Emergency Removal
25 U.S.C. 1922
 ICWA does not prevent emergency
removal of an Indian child who is
temporarily off the reservation.
 The Indian child must be returned home
as soon as the threat of imminent harm
has passed.
 Custody proceedings shall be initiated
quickly when appropriate.
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ISSUES?
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ISSUES?
 Lack of (timely) notice to Tribes
 Lack of identification of Indian children
 Lack of Indian foster homes
 Lack of active efforts
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ISSUES?
 Existing Indian Family doctrine
 Some courts have made exceptions to the
application of ICWA by finding that the despite
an Indian child’s membership in a tribe, the Act
was not intended to apply when a family has
no apparent cultural ties to a Tribe.
 Trend is moving towards rejection of this
unjustified doctrine.
 Doctrine was essentially rejected in
Holyfield v. Mississippi, 490 U.S. 30 (1989)
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ISSUES?
 Safe haven for dropping off newborns
 Conflicts with 10-day requirement under 25
USC 1912(a)
 No determination of membership
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Ideas for improvement
 Mandatory training for social workers
 Better screening tools to ID Indian children
at intake
 More tribal – state interaction
 More education for judges, prosecutors,
attorneys and social workers
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ANSWERS?
 What are the issues in your jurisdiction?
 What are your success stories?
 What could be done to improve compliance
with the ICWA?
 What amendments, if any, are needed to
ICWA?
 What have been your experiences with the
Act in different jurisdictions?
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