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Helpful Information
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What’s in this guide and how can
it help me?
This guide explains what the Indian Child Welfare Act is, why it was
passed, and how it applies in California.
If you’re a parent or Indian custodian, this guide can help you
decide if ICWA applies to your situation, and explains what your rights
are if ICWA does apply. It also explains what rights tribes have in your
case, if ICWA applies.
TIP: If a word in this guide appears in bold, we define
it afterwards. These terms are also defined at the end of this guide in
the section called "Some Helpful Terms About ICWA."
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Are you an Indian custodian or a legal guardian?
An "Indian custodian" is an Indian
person who is raising the Indian child instead of the child’s parents.
For more information about Indian custodians, see the ACORN Community
Legal Education Guide, "What Is an Indian Custodian?"
Under ICWA, Indian custodians have almost the same rights as parents.
A "legal guardian" is someone who has
custody of a child or children by order of the court. The court decides
which specific rights each legal guardian has. Legal guardians may be
related to the child or children, but they don’t have to be.
NOTE: If you’re trying to become a legal guardian, or if you’re
a legal guardian and an Indian child is being taken away from you, ICWA may
apply to your case. You can contact CILS to discuss your situation.
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What is the Indian Child Welfare Act?
- The Indian Child Welfare Act (ICWA) is a
federal law that was passed in 1978. ICWA sets out rules that state
courts have to follow in certain child custody "proceedings"
(cases) involving Indian children. Under state law, California courts
have to follow these rules.
- These rules apply in cases where Indian
children are being taken away from their parents or Indian custodians.
- The rules are designed to keep Indian
children connected to their families and tribes. Maintaining this
connection serves the best interests of Indian children and also
promotes the stability and security of Indian tribes and families.
- One important way ICWA helps to keep
children connected to their families and tribes is by requiring social
service agencies to make special efforts to keep Indian families
together. These agencies must provide services that reflect the
current social and cultural standards of the family’s Indian
community. Examples include counseling and parenting classes.
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What specific problems does ICWA
address?
ICWA was passed to address the following problems:
- Large numbers of Indian children were
being removed from their families by state courts and county social
service agencies.
- Most of these children ended up in
non-Indian homes and institutions.
- Indian children who were cut off from
their tribal communities and cultures often later had behavioral and
emotional problems.
- State and county officials often did not
understand, ignored, or rejected the cultural or social customs of the
child’s tribal community.
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Does ICWA Apply to My Case?
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Does ICWA apply to the kind of case I'm involved in?
If you’re a parent or an Indian custodian, and you’re involved in a
child custody case in state court where an Indian child may be taken away
from you, ICWA applies. If you’re a parent, it also applies in cases
where your rights as a parent are being "terminated"
(ended). These include cases where:
- the child may be placed in foster care
- someone may become "legal
guardian" of the child by order of the court
- the child may be put up for adoption
- the child may be removed from the home
by a child protective service agency
ICWA doesn’t apply in custody disputes between the biological
mother and the biological father, unless:
- someone who isn’t the child’s parent(s) may get custody of the
child or
- one parent is trying to terminate the rights of the other parent
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Which children does ICWA apply
to?
ICWA applies in cases involving an "Indian child."
ICWA defines an "Indian child" as an unmarried person under the
age of 18 who:
- is a member of a federally-recognized
Indian tribe or
- is eligible for membership in a
federally-recognized Indian tribe and is the biological child
of a member of a federally-recognized Indian tribe.
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Who decides who can be a member
of a tribe?The child’s Indian tribe decides who can
be a member. Depending on the tribe’s membership laws, enrollment may or
may not be necessary for the child to be considered a member.
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I don’t know if my child is an
"Indian child" as defined in ICWA. What should I do?
If you are a parent or an Indian custodian, and you aren’t sure if
your child is a tribal member or is eligible for tribal membership, you
should:
- Let the court and the county social
worker know that the child may be an Indian child. Give them as
much information as possible about why you think the child is a tribal
member or eligible for membership in a tribe.
- Contact the child’s tribe immediately
and tell them about the court case you have coming up. Ask them if
they can provide written proof that the child is a tribal member or is
eligible for tribal membership.
- If the child isn’t a member, ask the
tribe for information on how to apply for membership. Each tribe has
its own laws and rules regarding membership. For example, some tribes
may ask for a formal application or a certified birth certificate. Be
prepared to give them as much information as you can about the child
and his or her Indian parents, grandparents, and other ancestors, such
as their full names (including maiden names), dates of birth, and
tribal enrollment numbers (if any).
- If the court that is hearing the case
doesn’t have enough information about a child’s tribal membership,
it may decide that ICWA doesn’t apply to the custody case. However,
if the child enrolls in their tribe at a later date, the court has to
apply ICWA to the custody case.
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Under
ICWA, What Rights Do I Have?
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Under
ICWA, what rights do I have as the parent or Indian custodian of an Indian
child?
If you’re the parent or Indian custodian of an Indian
child, ICWA gives you the following rights:
TIP: A "hearing" is a meeting with
a judge, and the people, tribe(s), or institution(s) involved in the court
case. It usually takes place in a courtroom. But when children are
involved, the meeting takes place behind closed doors. During the hearing,
each side argues for their point of view in the case.
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the right to participate
in the child custody hearing
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the right to ask for up to
20 more days to get ready for a hearing
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the right to ask that the
case be moved to tribal court (if there is one)
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the right to a
court-appointed attorney (at no charge) if the court decides that you
can’t afford to pay for one
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the right to look at the
documents about the case that the court has on file
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the right to reunification
services (such as counseling or parenting classes) that can help you
keep custody of the child
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if you’re a parent, you
have the right to agree that the child should be placed in foster care
or put up for adoption
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if you’re a parent, you
have the right to change your decision to place the child in foster
care or put the child up for adoption
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if you’re a parent, you
have the right to ask for custody back if the child is adopted and the
adoption doesn’t work out
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the right to have experts
testify in the case and to make sure that enough evidence is presented
before your right to keep custody of the child is taken away. (For
example, a court can’t take custody away from you unless it has
proof that the child will suffer serious emotional or physical harm if
he or she remains with you. An expert must give this kind of proof.)
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the right to have the
rules set out by ICWA, including its "placement preferences,"
followed.
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What are "placement
preferences"?
ICWA sets out a "preferred" (favored) order of places
that an Indian child should live if they are taken away from their
parents. The places that are listed as best for the Indian child to live
are ICWA’s placement preferences.
- The first choice is to place the child
with a member of their extended family. This includes both Indian and
non-Indian extended family members.
- If that’s not possible, the second
choice usually is with other members of the child’s tribe.
- If that’s not possible, the third
choice usually is with other Indian families.
TIP: This is a general placement order. It may be different,
depending on whether the child is going into foster care, or is going up
for adoption. Also, ICWA requires that placement decisions reflect the
current social and cultural standards of the child’s Indian community.
Because Indian tribes have the most knowledge about who can best care for
the child and preserve the social and cultural standards of the child’s
community, tribes have the right to change placement preferences.
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What notice will I get if there
is a custody case about my child?
In cases where ICWA applies, the law says that the court has to give
you proper notice about the case. This means:
- You must receive the notice in writing.
The notice must be sent by registered or certified mail, along with
return receipt.
- You must receive the notice at least 10
days before the hearing.
- The notice must include information
about the "nature" of the case (such as what kind of
hearing it is, and the date, time, and place the hearing is scheduled
for).
The notice must inform you of your right to "intervene"
(participate) in the case.
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What if I don’t get proper
notice?
- If you didn’t get proper notice, but
you can come to court on the day of the hearing, you should. You
should tell the judge that you didn’t get proper notice. If you need
it, you should ask for a "continuance" (to have the
hearing changed to a future date). A continuance will give you extra
time to prepare for the hearing or find an attorney.
- If you didn’t get proper notice about
a hearing, it is "subject to invalidation." This
means that all the "orders" made at the hearing may
be "vacated" (set aside) or reversed. You have the
right to ask for invalidation. This means you have the right to ask
the court to vacate all the orders made at the hearing.
TIP: "Orders" are instructions given by a judge
that command (or "order") another government department or
agency to take some specific action. For example, if you got custody of an
Indian child in a state court, the piece of paper that the judge signed
that gave you custody is called an order. These are also called "court
orders."
- If you decide to ask for invalidation,
you should do it right away. Otherwise, your right to object to the
court order may be "waived" (lost).
- You should always tell the court if you
didn’t get proper notice, even if you don’t want to ask for
invalidation. This will help make sure you get proper notice of future
hearings.
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Can I have a hearing
invalidated for any other reasons?
Yes. You can ask for invalidation if ICWA isn’t followed in any of
the following ways:
- The case was dealt with in state court
when it should have been dealt with in tribal court.
- You asked the state court to move the
case to tribal court, but they refused without "good cause"
(good reason).
- The state court denied you the right to
participate.
- The state court refused to give "full
faith and credit" to tribal laws, records, or court decisions
even though those tribal acts did not conflict with state policy. This
means that a state court didn’t apply and recognize tribal laws or
tribal court decisions, or honor tribal records.
TIP: "Full faith and credit" means that state
courts have to give tribal laws, records, and court decisions the same
power in the state courts that they have within tribal lands. It means
that the state courts treats tribal laws, records, or court decisions as
equal to state court laws, records or decisions.
- You asked the court for an extra 20 days
to get ready for a hearing, but they refused to give it to you.
- The state court denied your right to a
court-appointed attorney, even when you showed you couldn’t pay for
one.
- The state court denied you the right to
look at all the documents about the case that the court had on file.
- There was a child protective services
agency involved, and they didn’t make an "active effort"
(provide all the services they could, within reason) to try to keep
your family together.
- The state court didn’t hear testimony
from experts, or didn’t make sure that enough evidence was presented
before it took away your custody of the Indian child.
- The state court has to follow specific
rules when it gets your "consent" (permission) to
place the child in foster care or put the child up for adoption. This
process is called a "voluntary" placement (because
you or the other parent made this choice of your own free will). If
the state court does not follow its specific rules when it gets your
consent, you can ask for invalidation.
- The state court wouldn’t "vacate"
(set aside) a final adoption order that was in effect for less than
two years, and where the biological parent’s consent was gotten
through fraud or "duress" (threat of force or
pressure).
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Under ICWA, What Rights Does the Child’s Tribe Have?
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ICWA, what rights does the Indian child’s tribe have?
In addition to knowing about the rights that you have as a parent or
Indian custodian, it’s important for you to know that the child’s
tribe also has rights under ICWA. For example:
- The tribe has a right to participate in
custody cases of its Indian children.
- The tribe can "exercise"
(use) "tribal jurisdiction." (The term "jurisdiction"
refers to which court – tribal or state – has the right to hear a
case. Whether the tribe has jurisdiction may depend on whether the
child lives on or off the reservation.)
NOTE: Jurisdiction is a very complicated subject. Contact
your local CILS office if you have questions about the jurisdiction of
your custody case.
- The tribe has the right to be notified
about the child custody case.
- The tribe has the right to ask for up to
20 more days to get ready for a hearing.
- The tribe has the right to ask that the
case be moved to tribal court (if there is one).
- The tribe has the right to deny your
request that the case be moved to tribal court
- The tribe has the right to look at the
documents about the case that the court has on file
- The tribe has the right to see records
kept by the State on the placement of tribal children.
- The tribe has the right to apply certain
tribal laws or customs to the custody case. These include laws that
define "Indian custodian" or "extended family,"
for example.
- The tribe has the right to disagree with
ICWA’s placement preferences and to tell the court where the tribe
thinks it would be best for the Indian child to live
TIP: When a tribe exercises this right, they usually have a
specific person in mind.
- Tribes have all the same rights about
getting proper notice from the court that you do, including the right
to ask for invalidation (see Pages 5-6).
- Notice to the tribe must be sent to the
tribal chairperson or other representative that the tribe chooses.
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Some Helpful Terms About ICWA
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What do some of the legal words
I hear about ICWA mean?
ICWA, like other areas of law, has its own special language. Some of
the words you might hear or see in a child custody case, and their
meaning, are listed below.
- Active Effort
- Active effort means that social service
agencies have to provide services to keep Indian families together.
These services must reflect the current social and cultural standards
of the family’s Indian community. Examples include counseling and
parenting classes.
- Consent
- Consent means permission.
- Continuance
- Continuance means to change a hearing to
a future date.
- Duress
- Duress means someone made a choice
because they were threatened, pressured, or bullied.
- Exercise
- Exercise means to use your rights.
- Foster Care Placement
- Foster care placement means placing a
child in the custody of foster parents.
- Full faith and credit
- Full faith and credit means that state
courts have to give tribal laws, records, and court decisions the same
power in the state courts that they have within tribal lands. It means
that the state courts treats tribal laws, records, or court decisions
as if they were equal to state court laws, records or decisions
- Good Cause
- Good cause means good reason.
- Hearing
- Hearing is a meeting with a judge, and
the people, tribe(s), or institution(s) involved in the court case. It
usually takes place in a courtroom. But when children are involved,
the meeting takes place behind closed doors. During the hearing, each
side argues for their point of view in the case.
- Indian Child
- Indian child, according to ICWA, is an
unmarried person under the age of 18 who is a member of a
federally-recognized Indian tribe; or who is eligible for
membership in a federally-recognized Indian tribe and is the
biological child of a member of a federally-recognized Indian tribe.
- Indian Custodian
- Indian custodian is an Indian person who
is raising an Indian child instead of the child’s parents.
- Intervene
- Intervene means to participate in a
child custody case.
- Invalidated
- Invalidated means that the orders made
at the child custody hearing are set aside or reversed.
- Jurisdiction
- Jurisdiction, in this case, refers to
which court – tribal or state – has the right to hear a case.
- Legal Guardianship
- Legal Guardianship is when someone has
custody by order of the court. The person who is given custody is
called a legal guardian. The court decides which specific rights each
legal guardian has. Guardians may be related to the child, but they
don’t have to be.
- Nature
- Nature means the type of court case, and
the date, time, and location where it takes place.
- Notice
- Notice means to be told about a child
custody case. Notice is not proper when the parents, Indian custodian,
or tribe were not told about a child custody hearing in the right way
or in enough time to prepare for the case.
- Orders
- Orders are instructions given by a judge
that command (or "order") another government department or
agency to take some specific action. They are also called "court
orders."
- Placement Preferences
- Placement preferences are made by ICWA.
They set out the preferred order of places an Indian child should live
if they are taken away from their parents.
- Proceedings
- Proceedings are court cases or hearings.
- Vacate
- Vacate means the court sets aside orders
made at a child custody hearing.
- Voluntary
- Voluntary placement means you choose, of
your own free will, to place the child in foster care or put the child
up for adoption.
- Waive
- Waive means a legal right is given up or
lost.
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| REVISION 12/03 |
DisclaimerThis
information is intended to assist you with your legal problem. Each area
of the law is complex and changing. Your case may have special factors that
could affect the applicability of this information. CILS does not guarantee
that this information is sufficient to resolve your legal problem. If you
have any questions, you should seek the advice and counsel of an attorney.
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ACORN
Community Legal Education SeriesThe
Advocacy, Collaboration, and Referral Network (ACORN) is a project of CILS.
ACORN’s mission is to expand access to legal resources that increase
Indian self-sufficiency. This guide is part of our Community Legal Education
Series, providing Indians and Indian tribes with user-friendly information
and self-help assistance pertaining to their legal status and rights. ACORN
Community Legal Education guides, and more information about CILS and California
Indian issues, are available on our website at www.calindian.org.
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California
Indian Legal Services
Central
Office:
510 16th Street, Fourth Floor, Oakland, CA 94612
Phone: (510) 835-0284 ? Fax: (510) 835-8045 ? |
Do
you have a legal problem? For assistance, contact your local CILS office:Bishop:
(760) 873-3581, or (800) 736-3582
Escondido: (760) 746-8941, or (800) 743-8941
Eureka: (707) 443-8397, or (800) 347-2402
Oakland: (510) 835-0284, or (800) 829-0284
Santa Rosa: (707) 573-8016, or (866) 251-8016 |
