When Does the Indian Child Welfare Act (ICWA) Apply?

By Kia Murdoch, CILS Sacramento office Staff Attorney

ICWA provides protections for Indian children in State Court “Child Custody Proceedings.”

The ICWA is a federal law that provides procedures to protect “the best interests of Indian children and promote the stability and security of Indian tribes and families” in certain child custody proceedings.[i] Protecting children’s connection to their culture, their Tribal community, and their Tribal membership interests are important not only for the individual children but for the future of their Tribes.

The ICWA broadly defines child custody proceedings, but ICWA protections are commonly applied in state dependency cases where a state welfare agency has removed or may remove the child from their parent’s home, whether temporarily, permanently, voluntarily, or involuntarily. ICWA specifically applies to dependency proceedings where an “Indian child” is involved or where the welfare agency has reason to know the child involved may be an “Indian child.”

The ICWA also applies in guardianship and private adoption cases involving Indian children.  The ICWA does not apply to divorce or custody cases between the Indian child’s parents.

I have Indian ancestry; does ICWA apply to my family?

Who is an “Indian child”? The ICWA defines an “Indian child” as any “unmarried person under the age of 18 who either (1) is a member of an Indian tribe, or (2) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.[ii]

It is important to note that an “Indian tribe” for ICWA purposes refers to a federally recognized Tribe.[iii]  Not all Indian tribes are federally recognized, and unfortunately, merely having Native American or American Indian ancestry is not enough to trigger ICWA protections. The federally recognized Indian tribes are listed in the Federal Register.

However, California law gives the court discretion to allow non-federally recognized tribes to participate in child custody proceedings if the child would be an “Indian child” under ICWA, except for the Tribe’s lack of federal recognition.[iv]  Unlike child custody proceedings where a federally-recognized Tribe must be notified of the proceedings when there is reason to believe the child involved might be a Tribal member, an unrecognized California tribe is not required to be notified; instead they must request the court for permission to participate in the child custody proceeding.[v]

ICWA applies even when the court is not sure if the child is an “Indian child.” So long as the court has reason to know the child involved in the child custody proceeding may be an Indian child, the court must proceed under that assumption that the ICWA applies until the Tribe informs the court that the child is neither a member nor eligible for membership.

What counts as “membership” in a Tribe?

Under ICWA, the Tribe has the sole authority to determine what membership means.[vi] For example, membership does not necessarily mean formal enrollment.[vii] Further, the Court cannot question how the Tribe decides to define membership. If the Tribe decides the child involved in a child custody proceeding is not a member, ICWA still applies if the child is eligible for membership and is the biological child of a member of the Tribe.

If ICWA applies to my family, what should I do?

In dependency cases, the child welfare agency must notify the Tribe as soon as they have reason to know the child involved may be an Indian child. If you believe the ICWA may apply to your family, inform the social worker which Tribe(s) the child may be a member of, so the social worker can notify the Tribe(s) to determine membership status.

[i] 25 U.S.C.A. § 1902.

[ii] 25 U.S.C.A. § 1903(4).

[iii] 25 U.S.C.A. § 1903(8).

[iv] Cal. Fam. Code § 185 (See also Welf. & Inst. Code § 306.6).

[v] Ibid.

[vi] United States v. Bruce, 394 F.3d 1215, 1225 (2005) (“[O]ne of an Indian tribe’s most basic powers is the authority to determine its own membership”).

[vii] In re Jack C., 192 Cal.App.4th 967 (2011).

ICWA Implementation Shortfalls

By Jedd Parr, CILS Sacramento Office Directing Attorney

In 1978, the federal government passed the Indian Child Welfare Act in response to wildly disproportionate numbers of Native American children being removed from their parents and placed outside of their families and tribes.  Many grew into adulthood with no knowledge of their heritage.  Before the ICWA, little regard was given to the long-term impacts on those children and their tribal communities.  The ICWA was intended to solve the problem by creating minimum standards for state agencies and courts, seeking to reunify Indian children with their parents if possible, and if not, then to encourage connections between the children and their extended families and tribes.

Forty-two years later, even in a state like California, where several significant pieces of legislation have been passed to implement the law better, numerous problems remain.  Too often, the ICWA is poorly understood by some county social service agencies, attorneys representing children in dependency cases, and even the courts themselves.  Where the law is better understood, it may still be seen as an unwelcome impediment to the usual course of business – additional legal requirements, additional forms to be filed, tribes to be contacted or to join the cases as parties, extended family members and tribal members to be searched for and evaluated as possible placements.  In a system where many counties already feel overloaded, it is not surprising that the ICWA is at times given short shrift.

The heart of the problem is that the purpose of the law is typically not wholly realized or believed.  The importance of the connection between Native Americans and their tribes is not something easily understood by non-Indians.  As a result, tribes are commonly treated as less than the sovereign governments concerned for their people’s welfare that they are.

Tribes may not be notified at all of a case involving one of their children.  They may be denied information about the case due to outdated understandings of confidentiality.  They may send a representative to a far-off hearing only to find that the other parties have already agreed to ask for a continuance.  Tribal representatives may receive reports of a county’s recommendations for a child on the day of the hearing at which the court is to decide on those recommendations, with no opportunity to evaluate beforehand with the decision-makers of the tribe.  They may be ignored when building reunification plans for the parents, or in identifying extended family and tribal member placements preferred under federal and state law.  Tribes may be told that arranging visitation with out-of-the-area family and tribal members, in case reunification fails and placement with a non-parent is necessary, is too difficult or expensive.  They may later be told, if reunification does not occur, that placement with a family or tribal member is not in the child’s best interests because he or she doesn’t know the family or tribal member well enough, and have instead bonded to the foster family in the local area.

What’s the solution, if these problems persist so many years after the ICWA became law?  Information can help.  In 2015 the California ICWA Compliance Task Force convened at the invitation of the California Attorney General.  Chaired by seven tribal leaders and composed of other tribal representatives and advocates, in 2017 it delivered a detailed report to the Attorney General, which documented ICWA issues throughout the state. It made 20 specific recommendations to help improve implementation.  Some of those recommendations have seen progress – for example, the formation of the Office of Tribal Affairs within the California Department of Social Services, or California’s collection of data on ICWA compliance for the federal Adoption and Foster Care Analysis and Reporting System.  But others have seen little or no progress.

In the opinion of many tribes, ICWA advocates and practitioners, tribes need to be represented by counsel from the outset in more dependency cases.  All other parties – the county, the parents, the children – are provided with attorneys.  Doing the same for tribes would help ensure that the ICWA is followed and that the spirit and purpose of the law are finally met.

Active Efforts in ICWA Cases During the Pandemic

By Debra Avenmarg, CILS Eureka office Staff Attorney

Indian Child Welfare Act (ICWA) cases are being severely impacted by the COVID-19 pandemic:  courts are delaying time-sensitive hearings, tribal families visits are being disrupted or canceled altogether, and case plan services are being put on hold. This raises concerns of whether active efforts tribal families need in order to reunite with their children can still be provided during the pandemic. As an advocate for ICWA compliance, you may be asking yourself, should I hunker down for now and deal with all efforts and services issues once the pandemic is under control? NO! Do ANY services even exist in a time like this, let alone active efforts or reasonable services? YES! What can I do to make sure active efforts continue to be provided to tribal families?

Here are some ideas to get your cases back on track with active efforts!

  • Ensure That Your Tribal Families Have the Technology to Access to Their Children, Services, and Support Networks.
  • Ensure That Tribal Children and Parents Have Meaningful, Frequent Family Time.
  • Assess Whether Case Plans Need to be Updated and Tailored for Your Tribal Family’s Current Situation.
  • Evaluate if Alternative Placement is Available if Your Tribal Children Are in Congregate Care.
  • Act Now! Do Not Wait Until the Next Review to Address Active Efforts.
  • Links to Additional Resources for Providing Active Efforts and Reasonable Services

Click here to find out more about these topics and how you can help!

Protecting Indian Children: The Importance of Culture When Working with Indian Families

By Mica Llerandi, CILS Escondido office Staff Attorney

When I worked as an attorney on my reservation, I was eager to jump into serving my tribal community. My employer, a legal aid program, provided cultural awareness training, but I incorrectly assumed it wasn’t necessary for me. In my mind, this was my reservation, this was the community I grew up in, and I knew what I needed for my job. I quickly realized that I grossly misjudged my abilities and learned that I needed to quickly shed my biases and prejudices to effectively serve my clients.

As service providers, it is easy to overlook our personal biases and prejudices and ignore the importance of cultural humility. This is especially true in the child welfare/dependency context as service providers often encounter families in crisis. Services providers may respond with kneejerk reactions as opposed to meeting the family and trying to understand their needs. These inadvertent reactions often cause the family to distrust the service provider and hurt the chance to develop a healthy relationship with the provider.

In order to effectively serve our Indian families, we need to be aware that our good intentions might ignore our Indian families’ beliefs or values. When exploring how to serve our Indian families better, a great resource to start is the Substance Abuse and Mental Health Services Administration’s Culture Card. While this culture card is not the final authority in cultural awareness and humility, the guide provides a snapshot of cultural concepts and issues to be aware of when meeting with Indian individuals.

Cultural humility is especially important in child welfare because cultural supports may be what the Indian family needs. By ignoring the value of culture or incorrectly assuming the Indian family does not want or already have cultural support, service providers risk leaving a hole in the family’s support network. Without this support, the child welfare system can easily fail our Indian families. In 1978, Congress passed the Indian Child Welfare Act (ICWA) to establish minimum federal standards for the removal of Indian children and to combat the removals occurring due to the misunderstanding of Indian cultural child-rearing practices.

In 2016, the Bureau of Indian Affairs (BIA) examined the implementation of the ICWA and determined that states implemented the ICWA inconsistently. An area of need was in providing “active efforts” to prevent the breakup of Indian families. To combat this, the BIA issued binding regulations, added a definition for active efforts with examples, and highlighted that active efforts should be provided in a manner consistent with the prevailing social and cultural conditions of the tribe to maintain the Indian family.  25 C.F.R. § 23.2, 2016. Therefore, as a matter of best practice, service providers coming into contact with an Indian family should consider what partnerships with the tribe or Indian social programs could serve or support an Indian family.

California responded to the release of the BIA Regulations by passing Assembly Bill 3176 (AB 3176), which codified the 2016 BIA ICWA Regulations. AB 3176 went into effect on January 1, 2019, and the current definition for active efforts, “the affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with their family,” can be found in Welfare & Institutions Code §224.1. The law proceeds to provide 11 examples of active efforts, here are a few examples:

  • Conducting a comprehensive assessment of the circumstances of the Indian child’s family, with a focus on safe reunification as the most desirable goal.
  • Identifying appropriate services and helping the parents overcome barriers, including actively assisting the parents in obtaining those services.
  • Identifying, notifying, and inviting representatives of the Indian child’s tribe to participate in providing support and services to the Indian child’s family and in family team meetings, permanency planning, and resolution of placement issues.
  • Offering and employing all available and culturally appropriate family preservation strategies and facilitating the use of remedial and rehabilitative services provided by the child’s tribe.
  • Identifying community resources, including housing, financial assistance, transportation, mental health, and substance abuse services, and peer support services, and actively assisting the Indian child’s parents or, when appropriate, the child’s family, in utilizing and accessing those resources.
  • Considering alternative ways to address the needs of the Indian child’s parents and, where appropriate, the family, if the optimum services do not exist or are not available.

When explaining the purpose of the 11 examples of active efforts, the BIA Regulations states this is not an exhaustive list and the minimum actions required to meet active efforts is determined on a case-by-case basis. 80 Fed. Reg. 38778, 38790 (June 14, 2016). Ultimately, “active efforts should be provided in partnership with the Indian child’s Tribe, and should be provided in a manner consistent with the prevailing cultural and social conditions and way of life in the Indian child’s Tribe.” Id.

So, what are the best practices for working with Indian families? The National Indian Child Welfare Association (NICWA) prepared a toolkit titled: “Tribal Best Practices.” The toolkit provides important things to keep in mind, such as:

  • Focus on building trust with the family,
  • Remain non-judgmental,
  • Remember that each family is different; there is no one way to respond,
  • Be realistic about expectations,
  • Highlight strengths of the family, and
  • Take a holistic approach and think outside the box for community supports/resources.

The toolkit and other resources for working with Indian families can be found at the NICWA’s website. The toolkit can be found here.

In addition to digital resources, the NICWA hosts an annual conference to discuss upcoming trends and research in Indian child welfare/protection. This year the 38th Annual Conference is scheduled to run from March 30-April 1, 2020, and will be conducted online in response to the COVID-19 pandemic. CILS, in collaboration with County Counsel from San Diego County, is scheduled to present on the role counties and tribes play in state child welfare cases. If you are interested in attending the virtual conference, you can contact the NICWA at training@nicwa.org or check back to their website.

More training and self-help information about ICWA here.

Tribal Child Support: The Tribe is Not an Arm of the State’s Child Support Enforcement Unit

By Denise Hurchanik Bareilles, CILS Eureka office Acting Directing Attorney

You have probably seen in the media various groups painting a picture that tribal governments make it difficult to collect child support for custodial parents. However, this is not the case. It is important to understand the significance of a Tribe administering its own child support agency instead of acting as an arm of the state’s child support enforcement unit. Tribes have the inherent sovereign authority to regulate the domestic relations matters of its members, which includes establishing and enforcing child support orders. Tribes may develop this program unique to its customs, traditions and laws by setting up their own agency through tribal dollars or applying for funds from the federal agency Administration of Children & Families, Office of Child Support Enforcement (ACF, OCSE).

There are currently 60 tribal Title IV-D child support agencies nationwide that are funded by the OCSE.  However, additional tribal child support agencies exist that that rely primarily on tribal dollars.

Some Benefits To Setting up a Tribal Title IV-D Child Support Program:

  • A maximum of $500,000.00 over a period of two (2) years to plan for the start-up of a Title IV-D tribal child support program in compliance with federal regulations found at 45 CFR Part 309.
  • After planning ends, the agency’s budget is funded 90% by the OCSE and 10% by the tribal government during the first three years of the program’s operation (i.e., direct services). Thereafter, the agency’s budget is funded 80% by the OCSE and 20% by the tribal government.
  • Development of tribal self-governance programs.
  • Providing employment for tribal members.
  • Development of tribal law addressing child support, including the tribe’s own child support guidelines.
  • Allowance for non-monetary forms of payment specific to tribe’s culture and tradition. Some Tribes have provided for support through fish and/or firewood upon agreement of the parties. The support order must describe the type of non-cash support that will be permitted to satisfy the underlying specific dollar amount of the support order.
  • Development of policy and law regarding income withholding orders, and attachment of other membership resources under the tribe’s jurisdiction.
  • Development of policy and law regarding intergovernmental case processing between the Tribe’s child support agency and agencies outside of the tribal government. Outside agencies must refer their foreign orders to the tribal agency for case processing consistent to the tribe’s policies and laws.
  • Development of policy and law regarding paternity establishment.
  • The tribal agency may design its program to transfer tribal child support cases from the state system to the tribal system for case management and legal court proceedings. California Rule of Court 5.372 specifies the case transfer procedure.
  • The tribal agency may develop a Memorandum of Understanding with the state child support agency to detail how cases are worked between governments.
  • The federal Full Faith and Credit for Child Support Orders Act (28 USC § 1738B) requires that courts give full faith and credit to another government’s child support court orders.

Applying for Title IV-D Funds:

Tribal governments that are interested in developing a child support agency in compliance with 45 CFR Part 309 may apply for start-up funds with the ACF, OCSE. Funds are available on an annual basis upon the grantor’s approval of the Tribe’s Title IV-D Plan. Interested tribes should have federal recognition, at least 100 minor children within its jurisdiction, and a Tribal Court (which may include a tribal consortium court). OCSE has a central office in Washington, DC and a regional office in San Francisco, CA (Region 9) that services the California Tribes. A start-up grant application may be submitted at any time of the year. There is no specific due date.