The Indian Child Welfare Act: Child Custody, Adoption, and Guardianship

In most child custody, adoption, and foster care placement cases, Illinois state law governs.  However, Congress passed a federal law in 1978 called the Indian Child Welfare Act, also known as “ICWA,” which creates a different burden of proof and set of standards for Native American children in child custody, adoption, and foster care placement cases.  ICWA sets forth the guidelines for removal of an “Indian child” from his or her Indian family, which imposes a significantly higher burden.


ICWA guidelines are not necessarily focused on the best interests of the child. Rather, ICWA was passed “to protect 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, and by providing for assistance to Indian tribes in the operation of child and family service programs.”


The federal government recognized the large-scale break-up of Native American families, as Native American children were systematically being removed from their homes and placed with families who had no connection to the particular Native American culture.  Essentially, Congress passed this law to protect the culture and family unit of Native Americans, setting a higher burden for removal of Native American children from their families.  ICWA also has a jurisdictional component such that if ICWA applies to a case, it may be transferred out of the state court and into tribal courts.  The tribal courts are perceived as a preferable venue for Indian families determined to combat the removal of children.  Finally, ICWA allows for the appointment of an attorney for the Native American parent, something not typically provided for in custody cases, aside from juvenile abuse and neglect proceedings.


In establishing whether ICWA is applicable to a case, the state court where the child custody proceeding originated must determine whether the child in the case is an “Indian child,” within the meaning of the law, in order to determine which court should hear the case.  The court will also look to where the children are domiciled to make this determination.  Some state courts will also examine whether the application of ICWA is proper within the law’s intended purpose.


In some cases, Native American litigants have attempted to assert their Indian status under ICWA solely for gaining an advantage in their case, despite having little or no connection to the Native American culture.  In these situations, some states have applied the Existing Indian Family Doctrine, which declines to afford the Native American parent the protections of ICWA if they have no substantive connection to the tribe.  The court must make its decision about the applicability of ICWA on a case-by-case basis.  Ultimately, the U.S. Supreme Court, has allowed the state courts to deny to apply ICWA when doing so would be contrary to the intended purpose of ICWA.


If a party intends to claim that ICWA is applicable to in a particular case, he or she must affirmatively do so, making it known to the courts that he or she is arguing the child is an “Indian child.”  In the case of In re T.A., the court stated that the “party asserting the applicability of [ICWA] has the burden of producing sufficient evidence for the court to determine if the child is an Indian child.”  In that case, the trial ruled that the child had been neglected, so custody and guardianship were granted to the DCFS guardian administrator. The father appealed, and he argued that the court should have determined whether his child was an Indian child under ICWA, which has higher standards for cases such as this.  On appeal, the State contended that the father gave up his ICWA claim by “failing to raise it” at trial.  He didn’t bring it up at trial, so he forwent the opportunity to make that argument on appeal.


The Appellate Court noted that, “a parent may be able to affirmatively waive application of the procedural requirements of [ICWA] … so long as the waiver is knowingly and voluntarily made.”  The Bureau of Indian Affairs, an agency that is part of the federal government’s Department of the Interior, has circulated guidelines to aid state trial courts with applying ICWA:


“When a state court has reason to believe a child involved in a child custody proceeding is an Indian, the court shall seek verification of the child’s status from either the Bureau of Indian Affairs or the child’s tribe.” Guidelines, 44 Fed.Reg. at 67,586, par. B.1 (a).


As a practical matter, when does a court have reason to believe a child is an “Indian child”? The Bureau of Indian Affairs’ Guidelines state:


(1) A party, tribe, or agency informs the court that the child is an Indian child;

(2) A state-licensed agency involved in child-protection services discovers information suggesting the child is an Indian child;

(3) The child gives the court reason to believe the child is an Indian child;

(4) The residence of the child, biological parent, or Indian custodian is known to be a predominantly Indian community; and

(5) An officer of the court involved in the proceedings has knowledge the child may be an Indian child.


Guidelines, 44 Fed.Reg. at 67,586, par. B.1(i) through (v).


In the case of In re T.A., the appeals court ruled that the trial court did not have enough evidence that the child was an “Indian child.”  As a result, the court did not allow the father in that case to avail himself of ICWA.


If you have questions about the applicability of ICWA or any other issues related to child custody, guardianship, or adoption, contact our office for a consultation.

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