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Application of the Indian Child Welfare Act


The Indian Child Welfare Act (ICWA) is a federal law that sets minimum standards for the removal of Native American children from their homes. The ICWA is designed to preserve and strengthen Native American families and culture.

Application of the ICWA

The ICWA applies to a child custody proceeding involving an “Indian child.” The ICWA defines an Indian child as an unmarried person under the age of 18 who is a member of a federally recognized Native American tribe or is eligible for membership in such a tribe. A child may be eligible for membership in a tribe if one of the child’s parents is a member of the tribe. The ICWA does not apply to custody disputes in divorce actions.

The ICWA applies to proceedings that involve:

* Foster care placement;

* Voluntary or involuntary termination of parental rights;

* Adoption; or

* Pre-adoption placement.


The ICWA states that tribal courts have exclusive jurisdiction over children who live on federal reservations. Therefore, a state court cannot preside over a proceeding that involves a Native American child who lives on a reservation.

In a case involving a Native American child who does not live on a reservation, the child’s parent or a tribe may request a transfer of the case to the tribal court. The court must transfer the case to the tribal court unless there is good cause to refuse the request for transfer. Good cause may exist if:

* The request for transfer was not timely;

* The child is over the age of 12 and objects to the transfer;

* A trial in the tribal court would cause undue hardship to the parties or the witnesses; or

* The child is over the age of five and the child’s parents have not maintained contact with the tribe.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.