Notification and rights In an involuntary proceeding, the party seeking the placement of the child, which is often but not always the state, must notify both the parent(s) and/or Indian custodian(s) and the child's tribe at least 10 days prior to the proceeding. Emergency proceedings may follow state law, but proceedings after that are controlled by ICWA. If the state cannot determine who the parent or the tribe is, then the state is required to notify the
Secretary of the Interior. Notification must contain all the requisite information identified in 25 CFR § 23.111 and be sent by registered or certified mail with return receipt requested, Failure to provide such notice can cause a jurisdictional defect that may result in any such proceeding to be overturned. The ICWA case may be dismissed for lack of due process if not for the lack of jurisdiction "because ' "failure to give proper notice of a dependency proceeding to a tribe with which the dependent child may be affiliated forecloses the participation by the tribe, [ICWA] notice requirements are strictly construed." "The determination of a child's Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement." The MOWA Band of Choctaw Indians, a tribe that is federally recognized by the U.S. Federal Government but is not recognized for services of the Bureau of Indian Affairs under 25 C.F.R 83 et al., is used for precedent for many cases whereby the following conditions apply: In cases whereby the mother may not be a member of the tribe, however she is eligible, then before the provisions of ICWA apply, "the trial court must initially determine if a child is an Indian child within the meaning of ICWA." This is because "a parent's current enrollment is not always dispositive of a child's membership in an Indian tribe". The child may not be temporarily removed unless there is a likelihood of "serious emotional or physical damage" to the child if they remain in the home.
Intervention The tribe and parents or Indian custodian of the Indian child have an unqualified right to intervene in a case involving foster care placement or the termination of parental rights. The intervention may be at any time, and not just at the beginning of the proceedings. This right does not apply to pre-adoption or adoption proceedings unless it also includes the termination of parental rights. The ICWA technically allows transfer to the tribal court at any time in the proceeding, but state courts vary on how they view transfer requests after state court proceedings are well into the adjudication process. In some cases the state will look to the
Adoption and Safe Families Act to deny such a transfer based on that law's time standards. After a motion for transfer has been made, there is a presumption that the tribal court will receive the case. The state court is required to make the transfer unless one of three factors is present: Note that a tribal court may not be a traditional tribunal, but may be any other administrative body empowered by the tribe to act on child custody matters.
Active remediation efforts ICWA requires that active efforts be made with the existing family to rehabilitate the root cause of problems prior to removal of the child. Many tribes are focusing on intercession prior to crisis. By engaging at-risk families, and providing services, they may be able to heal the family, with a dramatic improvement in outcome for both the child and the family. The tribes focus on remediation and rehabilitative services to protect the family, and offer unique services geared to tribal values, to help parents understand their roles as parents in the culture. Early intervention and support helps caregivers and families achieve better outcomes by addressing parenting skills, addictions, domestic violence, and housing instability. Results in a study of intervention/support indicated 81% of cases preserved the existing family, or placed the child with extended family within the tribe. By working with ICWA and the tribes to create preventative services that are
culturally sensitive, states can dramatically change outcomes of families who come to their attention. Such services need not be limited to tribal members, but are also available to foster and adoptive families to help them connect with the child's cultural roots.
Good cause A state court may decline to transfer a case for "good cause", but that term is not defined in the ICWA. The BIA has issued an advisory set of guidelines for state courts to use in determining "good cause". While these guidelines are not mandatory, many states have adopted them, and they include: • No tribal court as defined by the ICWA, • The proceeding was at an advanced stage when the transfer request was made, and the party asking for the transfer did not request the transfer promptly after receiving notice of the proceeding, • The Indian child is over the age of 12 and objects to the transfer, • It would cause undue hardship on the parties and/or witnesses to travel to a tribal court, or • The parents of an Indian child over the age of 5 are not available, and the child has had little or no contact with the tribe. The BIA has also set out factors that state courts may
not consider when determining whether good cause exists. These are binding regulations, effective as of December 12, 2016. The prohibited factors are: • Whether the proceeding is at an advanced stage, if the Indian parent, custodian, or tribe did not receive notice of the proceeding until an advanced stage; • Whether there have been prior proceedings involving the child in which transfer was not requested; • Whether transfer could affect the placement of the child; • The child's cultural connections with the tribe or its reservation; or • Socioeconomic conditions or negative perceptions of tribal social services or judicial systems.
Existing Indian family exception History of the exception In 1982, the
Kansas Supreme Court held that the ICWA "was not to dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother." Under the facts of the case, the court stated that the ICWA did not apply unless the child was part of an "existing Indian family unit," but this language was not part of the act. The court denied the
Kiowa Tribe of Oklahoma the right to intervene in the case, stating that the ICWA did not apply. The court also held that even if the ICWA did apply, the trial court committed no
reversible error because the non-Indian mother would have objected to the transfer of the case to a tribal court and, thus, defeated the transfer. Subsequent to the Kansas
Baby Boy L. case, in 1989, the
United States Supreme Court heard
Mississippi Band of Choctaw Indians v. Holyfield. As in the
Baby Boy L. case, both parents in
Holyfield consented to the voluntary termination of their parental rights and adoption of their twin infants by a non-Indian family. The unmarried parents were each Choctaw who were enrolled in the tribe. Unlike the parents in
Baby Boy L., the mother in this case lived on the reservation both before and after the birth of the children off-reservation. The Supreme Court found that the children were classified as "domiciled" on the reservation because their biological mother was domiciled there. It ruled that the exclusive jurisdiction of the tribal court under ICWA should have been invoked. The case was remanded to the tribal court for a custody determination three years after the twins had been placed with non-Indian adoptive parents. Noting the potential disruption in the twins' lives, the Supreme Court said that any potential harm could have been avoided if the parents and state court had not wrongfully denied the tribe its rights under ICWA. Other sources have noted that the
Holyfield case is relied upon as support for both sides of the debate over the "existing Indian family" exception: Surprisingly,
Holyfield has been relied upon by courts and parties both to support and reject the existing Indian family exception, which has been invoked in proceedings involving Indian children and families who are living off the reservation and who are, therefore, subject to state court jurisdiction concurrent with that of the tribal court. As of 2010,
Alabama,
Indiana,
Kentucky,
Louisiana,
Missouri, and
Tennessee still use the "existing Indian family" exception. Alabama and Indiana have limited its application by further court decisions. In June 2016, the Department of Interior specifically rejected the "existing Indian family" exception. The regulations reflect that courts that rejected the doctrine were correct to do so, and that "Congress did not intend to limit ICWA's applicability to those Tribal citizens actively involved in Indian culture."
Criticisms Some critics have complained that the existing Indian family exception requires the state court to determine what it means to be an Indian child or an Indian family, by applying tests to determine the "Indian-ness" of the child. One such test involved evaluating if the child lived "in an 'actual Indian dwelling,' apparently thinking of a teepee, hogan, or pueblo." Another work notes that "state courts have taken it upon themselves to determine individuals' relationship with their tribes by examining such contacts as subscription to a tribal newsletter." In her 1997 testimony before the Joint Hearing of the
House Resources Committee and the
Senate Committee on Indian Affairs, Assistant Secretary of the Interior
Ada Deer (
Menominee Indian Tribe of Wisconsin) stated: ... we want to express our grave concern that the objectives of the ICWA continue to be frustrated by State court created judicial exceptions to the ICWA. We are concerned that State court judges who have created the "existing Indian family exception" are delving into the sensitive and complicated areas of Indian cultural values, customs and practices which under existing law have been left exclusively to the judgment of Indian tribes ... We oppose any legislative recognition of the concept.
Foster care placement and adoption "Foster care placement" is defined as "any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated". ==Legal Challenges==