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Contact CN ICW

Phone: 918-458-6900
E-mail: Homes4Kids@cherokee.org
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Questions related to ICWA

       

1. Question: Who does this federal law effect?

Answer: This law affects all Indian children under the age of eighteen (18) who are being voluntarily or involuntarily removed from their natural parent(s) or legal guardian for foster care or adoptive placement. These children must be members or eligible for membership in a federally recognized tribe. Excluded are children adjudicated as delinquents or divorce custody matters between parents with no third party placement involved.

Legal Reference: 25 U.S.C. #sect# 1902 Congressional declaration of policy
The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . . . .


2. Question: What types of legal proceedings are covered under the federal Indian Child Welfare Act?

Answer: The Act pertains to all child custody and placement proceedings involving an Indian child such as foster care placement, termination of parental rights, pre-adoptive placement and adoptive placement. It does not include a placement as a result of a delinquent act of a child or in a divorce custody matter between parents when no third party placement is involved.

Legal Reference: 25 U.S.C. #sect# 1903 Definitions (1) "child custody proceeding" shall mean and include:

1. "foster care placement" which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home . . . . . . .

2. "termination of parental rights" which shall mean any action resulting in the termination of the parent child relationship;

3. "pre-adoptive placement" which shall mean the permanent placement of an Indian child in a foster home or institution after the termination of parental rights, but prior or in lieu of adoptive placement; and

4. "adoptive placement" which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.

(4) "Indian child" means any unmarried person who is under age of eighteen and is either (a) a member of a tribe or (b) is eligible for membership in an Indian tribe . . .



3. Question: Do guardianship proceedings fall under the federal Indian Child Welfare Act?

Answer: Yes. Any legal proceeding that causes the Indian child to be removed or separated from their biological parents falls under the provisions of the federal Act.

Legal Reference: 25 U.S.C. #sect# 1903 Definitions (1) (i)


4. Question: Who determines eligibility of the child for inclusion under this federal law?

Answer: The child's tribe is the only entity that can determine whether or not the Act applies to a particular child as inclusion of a child under the Act is based on tribal membership. Tribes have the exclusive right to determine membership requirements to their particular tribe.

Legal Reference: 25 U.S.C. #sect# 1903 Definitions
(3) "Indian" means any person who is a member of an Indian tribe . . . . . . . .
(4) "Indian child" means any unmarried person who is under age of eighteen and is either (a) a member of a tribe or (b) is eligible for membership in an Indian tribe . . . . . . . . .
(5) "Indian child's tribe" means (a) the Indian tribe in which an Indian child is a member or eligible for membership . . . . . . . . .
(8) "Indian tribe" means any Indian tribe, band, nation . . . . .recognized as eligible . . . . . . . by the Secretary (of Interior) . . .

Published Department of Interior Bureau of Indian Affairs Guidelines:
Section B.Determination that Child is an Indian
The determination by a tribe that a child is or is not a member of that tribe, is or is not eligible for membership in that tribe, or that the biological parent is or is not a member of that tribe is conclusive.


5. Question: Can the law apply to children who are not currently members of the tribe?

Answer: Yes it can if the parent of the child is an enrolled member then the child would be eligible for membership and would fall under the purview of the Act even if not currently enrolled. In situations where the parents are not currently enrolled, there is always the possibility they may enroll themselves or the child sometime during the middle of a legal proceeding. If this happens then the case would fall under federal mandates at that point. This is a common occurrence that causes confusion and amended legal actions. Therefore, it is always better to determine any possibility of eligibility at the beginning of the proceeding by supplying the tribe with family tree information so any potential enrollment can be established. When the potential for enrollment is present we find that it is always prudent to follow ICWA mandates from the beginning of the proceeding to prevent any delays or placement problems.

Legal Reference: 25 U.S.C. #sect# 1903 Definitions
(4) "Indian child" means any unmarried person who is under age of 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.


6. Question: What about membership in State recognized tribes?

Answer: The federal Indian Child Welfare Act does not apply to state recognized tribes. However, some states have their own Indian Child Welfare Acts that expand the provisions of the federal law and may include certain allowances in their particular state but it would not apply nationwide.


7. Question: What are the consequences for not following the law?

Answer: Any decision made in court can be appealed. The law provides that almost any error in applying the federal Indian Child Welfare Act can be overturned. To Cherokee Nation the worst consequence of the appeal process is the effects for the children. Appeals take a great deal of time and no matter who wins or who loses the legal battle the child always loses.

Legal Reference: 25 U.S.C. #sect# 1914 Petition of court of competent jurisdiction to invalidate action upon showing of certain violations
Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of section 1911, 1912, and 1913 of this title.

 

8. Question: Why does the federal law exist?

Answer: Cherokee Nation cannot explain this any better than Congress did in 1978 as referenced below in #sect# 1901 Congressional findings.

Legal Reference: 25 U.S.C. #sect# 1901 Congressional findings
Recognizing the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people, the Congress finds:

1. That clause 3, section 8, article I of the United States constitution provides that "The Congress shall have Power To regulate Commerce with Indian tribes" and, through this and other constitutional authority, Congress has plenary power over Indian affairs;

2. That Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources;

3. That there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members or are eligible for membership in an Indian tribe;

4. That an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and

5. That the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.


9. Question: What does it mean when a tribe "intervenes" in court proceeding involving the custody of an Indian child?

Answer: When a tribe intervenes in a court matter it means that the tribe is now a party to the proceeding. It also places the court and other interested parties on notice that the proceeding involves a verified member of an Indian tribe and that the provisions of the federal Indian Child Welfare Act will apply to this proceeding. Federal law states that a tribe can intervene at any time during the proceeding so prompt notification to the tribe helps to ensure that the court is aware from the beginning of the proceeding about the application of the laws that apply to Indian children.

Legal Reference: 25 U.S.C. #sect# 1911 Indian tribe jurisdiction over Indian child custody proceedings
(c) In any State court proceeding for the foster care placement of, or termination of parental right to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding.


10. Question: What if state law conflicts with federal law?

Answer: Federal law always supercedes state law. However, states that have adopted their own state Indian Child Welfare Acts may do so if the state law strengthens or expands the federal law but does not take away or modify the original intent of the federal mandates. In such case the higher standard of protection applies.

Legal Reference: 25 U.S.C. #sect# 1921 Higher State or federal standard applicable to protect rights of parent or Indian custodial 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 right provided under this subchapter, the State or Federal court shall apply the State or Federal standard.

 Child Placement

 

1. Question: Who is eligible to adopt an Indian child?

Answer: You will be eligible to adopt a Cherokee child if you are a relative from either side of the family, regardless of Indian heritage, and can provide a safe and stable home for the child. You will also be eligible to adopt a Cherokee child if at least one of the parents can prove tribal affiliation with a federally recognized tribe through a Certificate Degree of Indian Blood card (CDIB) or membership card and both can meet all the certification standards of the Cherokee Nation adoption program or other accredited adoption agency.

2. Question: Can a non-Indian family adopt an Indian child?

Answer: There are only three occasions when a non-Indian family can adopt a Cherokee child.

1. When a non-Indian family is a blood relative to the child.

2. When a child is over the age of 12 and chooses to be adopted by an appropriate non-Indian family.

3. If there was some extraordinary physical or emotional need of the child and there was currently no appropriate Indian family to meet the child's needs the Cherokee Nation could agree to a placement outside the Act in order to expedite placement and provide for the child's needs in a more timely manner.

3. Question: What does the federal law require when deciding an adoptive placement of an Indian child?

Answer: The federal law requires that certain placement preferences be used in the placement of an Indian child for adoption. The law gives first priority for adoptive placements to a member of the child's extended family. If after a diligent family search, which must be documented for the court, a relative is not available or suitable the placing agent or court must proceed to the second preference placement that is a placement with the Indian child's tribe. Cherokee Nation has a large adoption program which assists placing agencies and courts in meeting this second preference placement. Because of this placement availability it makes it almost impossible for courts to circumvent federal law with a "good cause" finding. The Act also allows for a third placement with members of another Indian tribe that can also be used if the other two preferences have been exhausted. Cherokee Nation also certifies Indian adoptive homes from other tribes.

Legal Reference: 25 U.S.C. #sect# 1915 Placement of Indian children (a)
Published Department of Interior Bureau of Indian Affairs Guidelines:
F.1. Adoptive Placements
Repeats the 25 U.S.C. #sect# 1915 reference but adds additional wording by stating that preferences must be given "in the order listed... ."

4. Question: What is "good cause" to make placement outside the adoption preference placement specifications of the law?

Answer: For Cherokee Nation "good cause" could only be established if, first, no suitable relatives were available for placement and the "due diligence" efforts of the relative search were accepted into the court record. Second, placement with a Cherokee adoptive family would have to be ruled out by the same standard of "due diligence" and accepted into the court record. It is in this area that the "good cause" standard would fail as Cherokee Nation has an abundance of approved adoptive homes that are made available across the United States to meet the placement needs of our Cherokee children. It is our belief that "good cause" cannot be established for adoptive placements of a Cherokee child outside the preference placements of the Act.
Published Department of Interior Bureau of Indian Affairs Guidelines:
BIA Guidelines allow only three reasons for a "good cause" finding to modify placement preferences. They read as follows:

1. The request of the biological parents or child when the child is of sufficient age;

2. The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness;

3. The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.

5. Question: Who has control of placement decisions?

Answer: Ultimately the judge has the final control of placement decisions, however, he is bound by his judicial oath to follow the laws that govern the placement of Indian children. At this time the federal Indian Child Welfare Act is that law that covers these issues and supercedes any state law to the contrary. However, states may adopt their own state Indian Child Welfare Acts if the state law strengthens or expands the federal law and does not take away or modify the original intent of the federal mandates. In such case the higher standard of protection applies.

Legal Reference: 25 U.S.C. #sect# 1921 Higher State or federal standard applicable to protect rights of parent or Indian custodial of Indian child.

6. Question: What are the consequences of not following the federal Indian Child Welfare Act on placement decisions?

Answer: To Cherokee Nation the most critical consequence is a disrupted placement. If a state court does not follow federal law and allows an illegal placement to continue for an extended period of time the correction of such an error will cause placement change. Depending on the length of time involved before the correction is made, the disruption could have long-term effects on the child. Some courts have made such placement errors and depend on the length of time necessary for appeal to cement the placement and declare "bonding" as a reason for "good cause" not to move the child to an Indian placement. This is a flagrant attempt to circumvent the law at the child's expense. The law is clear on preference placements and the court's responsibility to follow them. The best defense that the tribe has in such issues is a legal appeal. Appeals are never the first option of Cherokee Nation but we are ready to do so when such placement violations are blatant and Cherokee Nation has offered to provide an alternative placement that meets the needs of the child.

Legal Reference: 25 U.S.C. #sect# 1914 Petition of court of competent jurisdiction to invalidate action upon showing of certain violations

Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of secti

 

          



Notification Responsibilities

1. Question: Who has the legal responsibility to ensure that the tribe received legal notification?

Answer:

The law states that the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the tribe. This could be the court, attorney, private agency or state agency who is seeking placement action in an Indian child custody proceeding.

Legal Reference: 25 U.S.C. #sect# 1912 Pending Court Actions, Section (a)

2. Question: How do I give legal notice to the tribe as required under this federal law?

Answer:

According to law, notice must be sent by registered mail with return receipt requested, of the pending proceeding and of the tribe's right to intervene. This method would guarantee compliance with federal law and would not create a situation for appeal due to lack of proper notice.

Cherokee Nation is interested in timely notification so that we can be involved from the beginning of the case. This helps to ensure that all steps are done according to law. Cherokee Nation has accepted notice through fax communication and will continue to do so as long as this assists the court in more timely notice. Our fax number is 918-458-6146. We would suggest you follow-up by sending notice according to established ICWA standards. Our choice to accept faxed information is strictly to assist courts in meeting time constraints and in no way indicates that the federal law should not be followed or that any other tribe would choose to do the same.

Legal Reference: 25 U.S.C. #sect# 1912 Pending Court Actions, Section (a)

3. Question: What is required in the notice?

Answer:

1. Name and date of birth for the child;

2. Name and date of birth for the natural parents including maiden name of mother;

3. Names and dates of birth for any known direct ancestors such as grandparents and great-grandparents including maiden names of females;

4. A copy of the petition, complaint or other document by which this proceeding was initiated;

5. Names, addresses and telephone numbers of attorneys involved in the action;

6. Name of the judge presiding over the matter and the address of the court where the matter is to be heard:

7. Name, address and telephone number of any state or private social worker involved in the proceeding;

8. Notice of dates and times and location of the scheduled legal proceeding;

9. Statement of the biological parents or Indian custodians, and the Indian tribe to:

a. intervene in the proceeding,

b. to petition the court to transfer the proceeding to the tribal court of the Indian child, and

c. to request an additional twenty (20) days from receipt of notice to prepare for the proceeding.

 

Without this information there will be delays in processing the children to determine eligibility for tribal membership and return notification to the party needing such information to proceed legally. Cherokee Nation receives approximately 700 such requests each month and we average about two to three weeks from the time of receiving your notice until you get a reply. Any missing information from you only delays that process. Please help us help you.

Legal Reference: 25 U.S.C. #sect# 1912 (a) Notice

4. Question: What are the timeframes for sending notice of the court proceedings to the tribe?

Answer:

According to law, no foster care placement or termination of parental rights proceeding shall be held until at least 10 days after the tribe has received notice. The law also provides that the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding. Therefore, early notification of the tribe should be a priority and is necessary under federal compliance before a hearing involving an Indian child can be legally held.

Legal Reference: 25 U.S.C. #sect# 1912 (a) Notice

5. Question: How do I find the mailing address of the tribe that needs notification?

Answer:

Several tribes now have websites that give that type of information. You can send all notice information for the Cherokee Nation to:
Cherokee Nation
Attention: ICW
P.O. Box 948
Tahlequah, OK 74465

If you are unable to locate a website for the particular tribe you need, the Bureau of Indian Affairs maintains a list of the current mailing addresses for all the tribes. You can contact the Bureau in your area to obtain this information. The regional BIA offices are located as follows:

Alaska Regional Office:

Eastern Oklahoma Regional Office:

Bureau of Indian Affairs

Bureau of Indian Affairs

Niles C. Cesar, Regional Director

Jeanette Hanna, Regional Director

P.O. Box 25520

P.O. Box 8002

Juneau, AK 99802-5520

Muskogee, OK 74401

Telephone: 800-645-8397

Telephone: 918-781-4614

Fax: 907-586-7252

Fax: 918-781-4604

Eastern Regional Office:

Great Plains Regional Office:

Bureau of Indian Affairs

Bureau of Indian Affairs

Franklin Keel, Regional Director

Cora L. Jones, Regional Director

711 Stewarts Ferry Pike

115 4th Avenue, SE

Nashville, TN 37214

Aberdeen, SD 57401

Telephone: 615-467-1700

Telephone: 605-226-7343

Fax: 615-467-1701

Fax: 605-226-7446

Midwest Regional Office:

Navajo Regional Office:

Bureau of Indian Affairs

Bureau of Indian Affairs

Larry Morris, Regional Director

Elouise Chicharello, Regional Director

One Federal Drive, Room 550

P.O. Box 1060

Ft. Snelling, MN 55111-4007

Gallup, NM 87305

Telephone: 612-713-4400

Telephone: 505-863-8314

Fax: 612-713-4401

Fax: 505-863-8324

Northwest Regional Office:

Pacific Regional Office:

Bureau of Indian Affairs

Bureau of Indian Affairs

Stanley Speaks, Regional Director

Ronald Jaeger, Regional Director

911 NE 11th Avenue

2800 Cottage Way

Portland, OR 97232

Sacramento, CA 95825

Telephone: 503-231-6702

Telephone: 916-978-6000

Fax: 503-231-2201

Fax: 916-978-6099

Rocky Mountain Regional Office:

Southern Plains Regional Office:

Bureau of Indian Affairs

Bureau of Indian Affairs

Keith Beartusk, Regional Director

Dan Deerinwater, Regional Director

316 N. 26th Street

P.O. Box 368 WCD Office Complex

Billings, MT 59101

Anadarko, OK 73005

Telephone: 406-247-7943

Telephone: 405-247-6673

Fax: 406-247-7976

Fax: 405-247-5611

Southwest Regional Office:

Western Regional Office:

Bureau of Indian Affairs

Bureau of Indian Affairs

Rob Baracker, Regional Director

Wayne Nordwall, Regional Director

P.O. Box 26567

P.O. Box 10

Albuquerque, NM 87125

Phoenix, AZ 85001

Telephone: 505-346-7590

Telephone: 602-379-6600

Fax: 505-346-7517

Fax: 602-379-4413

Legal Reference: 25 U.S.C. #sect# 1912 (a) Notice

6. Question: What if I have reason to believe the child is Indian and do not know the tribe? How do I comply?

Answer:

If you have reason to believe the child is Indian and do not know the tribal affiliation, you can comply with federal law by sending your information to the Secretary of the Bureau of Indian Affairs in Washington, D.C. at the following address:

Bureau of Indian Affairs Division of Tribal Government Services MS-4631-MIB
1849 C Street, NW
Washington, D.C. 20240
Telephone: 202-208-2474

 

Legal Reference: 25 U.S.C. #sect# 1912 (a) Notice