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).