Children's Administration, Department of Social and Health Services
Children's Administration, Department of Social and Health Services
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Indian Child Welfare Manual

[1] The term “Indian” in this paper is used to include collectively the United States’ aboriginal populations and their descendents, Alaskan natives, Eskimos, Aleuts, and Native Hawaiians.  It is used interchangeably with the term “Native American” and with the understanding that each Native American nation, tribe, and community has its own distinct culture and history.

[2] 25 U.S. C. Sec. 1901 et seq.

[3] Surveys conducted in 1969 and 1974 reported that approximately 25 to 35 percent of all Indian children were separated from their families and placed in adoptive or foster homes.  Gaylene McCartney, The American Indian Child Welfare Crisis:  Cultural Genocide or First Amendment Preservation, 7 Colum. Hum. Rts. L. Rev. 529(1975).

[4] Angie Debo, A History of the Indians of the United States 41 (1970); Francis Prucha, American Indian Policy in the Formative Years:  The Indian Trade and Intercourse Acts, 1790-1834, 11-14 (1962).

[5] H.R. Rep. No. 1386, 95 th Cong., 2d. Sess. (1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7541 (hereinafter House Report).  See also Robert Weyler, Blood on the Land 149 (1982).

[6] See Kirke & Lynn Kickingbird, A Short History of Indian Education, Am. Indian J. 17-21 (Sept. 1979).

[7] Peter Farb, Man’s Rise to Civilization 257-59 (1968).

[8] 25 U.S.C. sec. 1903(3).

[9] Id. Sec. 1902.

[10] House Report, supra note 5, 7531.

[11] 25 U.S.C. Sec. 1911(a) providers that the Indian child’s tribe has exclusive jurisdiction if the child is a ward of the tribal court or “resides or is domiciled within the reservation. . . except where such jurisdiction is otherwise vested in the State by existing Federal law.”

                Section 1911(b) provides that the state and the Indian child’s tribe have concurrent jurisdiction if the child is not domiciled or residing within the reservation.  However, sec. 1911(b) shows a preference for tribal court jurisdiction by requiring a state court to transfer the proceedings to tribal court upon the petition of the child’s parent(s) or tribe.  The state court may refuse to transfer only if (1) the tribal court declines jurisdiction, (2) a parent objects to the transfer, or (3) the state court finds “good cause” not to transfer.

[12] 25 U.S.C. Sec. 1903(4) defines an Indian child as any unmarried person who is under the age of 18 and is either (1) 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.  The ICWA applies to custody proceedings involving an Indian child who has not been formally enrolled in a tribe at the initial stages of the proceeding but who is eligible for enrollment.  Swenson v. Oglala Sioux Tribe, 849 P.2d 925 (Idaho 1993) petition for cert. Filed, No. 93-18 (June 1993)(Clearinghouse No. 48,232).

[13] These include foster care placements, termination of parental rights, preadoptive placements. 25 U.S.C. Sec. 1903(1).  However, the ICWA does not apply to child custody proceedings that are part of juvenile court prosecutions or placements of children resulting from a divorce proceeding.  In re Guardianship of Q.G.M. 808 P.2d. 684, 688 (Okla. 1991).  In a recent appellate court decision, the Minnesota Court of Appeals decided that intrafamily custody disputes are not excluded from the ICWA and that the proposed placement of an Indian child in a grandparent’s home is a “foster care placement” within the meaning of 25 U.S.C. Sec. 1911©.  In re Custody of A.K.H., No. C4-93-32 (Minn. Ct. App. June 29, 1993).

[14] In Mississippi Band of Choctaw v. Holyfield, 490 U.S. 30 (1989), the Supreme Court stated that “Congress intended a uniform federal law of domicile for the ICWA.”  Id. At 47.  It also articulated five principles governing domicile determinations:  (1) a child acquires domicile at birth and that domicile continues until a new one is acquired, (2) the domicile of a minor child is determined by the domicile of the parents, (3) the domicile of an illegitimate child is the same as the mother’s domicile, (4) the domicile of an abandoned child is the domicile of the last abandoning parent, and (5) a tribal member cannot waive a tribe’s jurisdiction by giving birth and executing a consent for adoption off the reservation.  Id. At 48, 52-53.

[15] 25 U.S.C. sec. 1912.  State courts are divided on the issue of whether the notice provisions apply to voluntary adoption proceedings.  25 U.S.C. sec. 1913.  See, e.g., Catholic Social Services v. C.A.A., 783 P.2d 1159, 1160 (Alaska 1989), cert. Denied, 495 U.S. 948 (1990); Sayers v. Beltrami County, 472 N.W.2d 656, 661 (Minn. Ct. App. 1991), rev’d on other grounds, 481 N.W.2d 547 (Minn. 1992).  But see Holyfield, 490 U.S. at 50 n.25 (Congress intended the ICWA to reach voluntary placements).

[16] 25 U.S.C. sec. 1911(b).  See infra pt. III (discussion of problems in implementing the ICWA’s transfer provisions).

[17] 25 U.S.C. sec. 1912(d).

[18] Id. Sec. 1915(a)-(c).  See infra  pt. III.

[19] 25 U.S.C. sec. 1914.

[20] The BIA Guidelines are interpretations of various provisions of the ICWA by the Department of the Interior.  They are not binding authority.  BIA, Dep’t of the Interior, Guidelines for State Courts:  Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (Nov. 26, 1979) [hereinafter Guidelines].

[21] Id. At 67,592.

[22] Id.

[23] In re Robert T., 246 Cal. Rptr. 168 (Cal. App. 6 Dist. 1988).

[24] Id. at 174.

[25] Id.

[26] Department of Social Services v. Coleman, 399 S.E.2d 773 (S.C. 1990).

[27] Id. at 776.

[28] Id.

[29] In re Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988), cert. Denied, 490 U.S. 1069 (1989).

[30] 525 N.E.2d at 302.

[31] Id. at 308.

[32] See also In re C.W., 479 N.W2d 105 (Neb. 1992).  In In re C.W., the state court refused to transfer a termination proceeding to tribal court, finding the Supreme Court dictates in Mississippi Band of Choctaw v. Holyfield, 490 U.S. 30 (1989), “remotely applicable” and limiting the decision to cases in which the mother’s domicile is the reservation and, thus, when the tribal court has exclusive jurisdiction pursuant to section 1911(s).  479 N.W.2d at 117.  See also Barbara Ann Atwood, Fighting Over Indian Children:  The Uses and Abuses of Jurisdictional Ambiguity, 36 UCLA L. Rev. 1051, 1058 (1989).

[33] In Interest of Armell, 550 N.E.2d 1060 (Ill. Ct. App. 1990).

[34] Id. at1067.

[35] In Holyfield, the United States Supreme Court held that, pursuant to the ICWA, the tribal court, rather than the state court, had jurisdiction over Indian child welfare proceedings involving children.  The children’s parents, who resided on the reservation attempted to evade ICWA’s placement preferences by temporarily moving off the reservation in order to give birth to twins and allow them to be adopted by non-Indians.  Less than a month after their birth, the state court approved their adoption.  The Choctaw Tribe challenged the validity of the decree, arguing that, since the tribal court had exclusive jurisdiction, the state court lacked jurisdiction.  490 U.S. at 52.  Central to the Court’s decision on the jurisdiction issue was a determination that the child’s domicile was that of their parents—the reservation.  See supra note 14 for further discussion of the case.

[36] 550 N.E.2d at 1066 (quoting Holyfield, 490 U.S. at 53) (emphasis added).

[37] For example, the Northwest [now National] Indian Child Welfare Association and the North East Assistance and Training (NEAT) organizations provide technical and legal assistance to tribal Indian child welfare programs in their areas.  NEAT also promotes coordinated interagency (BIA and Indian Health Services) cooperation in all areas of Indian child welfare, including child abuse.

[38] For example, an intergovernmental agreement was negotiated in 1987 between the Washington State Department of Social and Health Services and the Colville Confederated Tribes.  One of the key jurisdictional provisions of the Colville agreement is a declaration that the State and the Tribes “recognize that their ability to enforce child support obligations, orders and judgments will be enhanced with the establishment of procedures for the reciprocal recognition and enforcement of child support orders.”  The agreement provides that the Colville Tribe will give full faith and credit to any state child support order when the custodial parent works or resides within the Colville Reservation.  The State, in turn, agrees to give full faith and credit to any child support order entered by the Colville Tribal Court.

[39] 25 U.S.C. Sec. 1902.

[40] “The former prioritizes the rights of the individual over those of the community.  In contrast, Indian cultures focus on the collective rights of the community, permitting individual rights to bow more readily to the needs of the community”  Donna Goldsmith, Individual vs. Collective Rights:  The Indian Child Welfare Act, 13 Harv. Women’s L.J. 1 (1990).

[41] 25 U.S.C. sec. 1919.

[42] For additional reading and resources on the Indian Child Welfare Act, the following materials are useful:  Indian Law Support ctr., 1992 Update to the ICWA and Laws affecting Indian Juveniles; Nat’l Indian Law Library (Boulder, CO), The Indian Child Welfare Act Bibliography; Peter Gorman & Michelle Paquin, A Minnesota Lawyer’s Guide to the Indian Child Welfare Act, 10 Law & Inequity: J. Theory & Prac. 311 (1992).

[43] Irving M. Levine.  “Ethnicity and Mental Health:  A Social Conservation Approach.”  Paper presented at the White House Conference on Ethnicity and Mental Health.  Washington, D.C.  June 1976.

[44] John G. Red Horse, “American Indian Families:  Perspectives on the Helping Process,” in We Can Help, ed. Laurence S. Hughes (Evanston, Ill.:  American Academy of Pediatrics, 1979), pp. 9-11.  See also D’Arcy McNickle, Native American Tribalism (London:  Oxford University Press, 1973).

[45] N. Scott Monaday, The Names (New York:  Harper and Row, 1976).

[46] Ed Bearheart, “Religion as a Variable in Family Practice.”  Paper presented at the Minneapolis Indian Alcohol Counselor Workshop, Minneapolis, Minnesota, Spring 1976.  The tribal religion cited here is conservative and strict rules are observed.  Only Indians are permitted to attend sacred ceremonies or rituals, and these are the necessary paths to spiritual completeness.  Moreover, they believe that not all Indians can enjoy a happy afterlife—this requires an Indian name and knowledge of the tribal language.

[47] John Red Horse, John Ledingham, and James T. Decker, “American Indian Elders:  Perspectives on Cultural Behavior and Needs.”  Paper presented at the Annual Meetng of the Society for the Study of Social Problems, Boston, Massachusetts, Summer, 1979.

[48] John G. Red Horse et al., “Family Behavior of Urban American Indians,” Social Casework 59 (February 1978):  67-72.

[49] P. L. 95-608.

[50] 25 USC sec. 1901 et seq.

[51] For example, in Doe v. Hughes, Thorsness, Ganz, et al., 838 P.2d 804 (Alaska 1992), the Alaska Supreme Court awarded damages against a law firm that had not conservatively followed the requirements of the ICWA, resulting in protracted litigation and extensive costs to the adoptive parents of an Indian child.

[52] The primary piece of legislative history for the ICWA is H.R. Rep. No. 1386, 95 th Cong., 2d Sess. (1978) and is reprinted at 1978 U.S. Code, Cong. & Admin. News 7530 (hereinafter referred to as “House Report”).

[53] For example, 40% of all adoptions in South Dakota in a defined time period were of Indian children, even though Indians were only 7% of the juvenile population.  In Washington the adoptive placement rate of Indian children was 19 times greater than the rate for non-Indian children.

[54] House Report at 9.

[55] 25 U.S.C. sec. 1901(4), (5).

[56] The Act defines an Indian child as an unmarried person under 18 who is either a member of the tribe or eligible for membership and the biological child of a member.  25 U.S.C. sec. 1903(4).

[57] This term is defined to “mean and include” foster care placements, termination of parental rights proceedings, pre-adoptive placements, and adoptive placements.  Placement and custody issues in the context of delinquency or divorce proceedings are specifically excluded.  25 U.S.C. sec. 1903(1).  E.g., Matter of Baby Boy Doe, 849 P.2d 925 (Idaho 1993).  As will be discussed later in this article, not all states follow this test for application of the ICWA.

[58] An Indian custodian is defined as any Indian person who has legal custody of an Indian child under tribal law or custom or under state law or to whom temporary physical custody has been transferred by the child’s parent.

[59] 25 U.S.C. sec. 1912(3).

[60] 109 S. Ct. 1597.  See Bussiere, Supreme Court Affirms Tribal Jurisdiction Over Indian Children,” Youth Law News (May-June 1989).

[61] 109 S. Ct. 1597, 1611.

[62] 25 U.S.C. sec. 1903(1)(iv).

[63] Mississippi Band of Choctaw v. Holyfield, 109 S. Ct. 1597, 1609, n.25 (1989).

[64] E.g., In re Appeal in Pima County Juv. Action No. S-903, 635 P.2d 187 (Ariz.App. 1981); In re Adoption of K.L.R.F., 515 A.2d 33 (Pa.Super. 1986); Matter of Baby Boy Doe, 849 P.2d 925 (Idaho 1993).

[65] 25 U.S.C. sec. 1913.

[66] For example, the non-custodial parent’s preferential right to placement of a child upon termination of the custodial parent’s parental rights is not addressed anywhere in the ICWA or its legislative history.  See 25 U.S.C. sec. 1915(a) (placement preferences).  The act assumes that the parental rights of both parents will be disposed of at the same time.  There is a brief mention in the Act’s legislative history of the constitutional rights of parents (with regard to automatic party status), but no discussion of the preferential custodial rights of biological parents exists.

[67] 25 U.S.C. sec. 1913(a).  The consent must be recorded in open court unless the prent requests confidentiality.  House Report at 23.

[68] Id.  An invalid consent would be grounds for overturning the adoption at any time the invalid nature of the consent is discovered.  Holyfield, supra. 490 U.S. at 64 n.12 (dissenting opinion).  But see Matter of Adoption of T.N.F. 781 P.2d 973 (Alaska 1990) (applying state statutes of limitation to an ICWA invalidation action).

[69] 25 U.S.C. sec. 1913(c).

[70] See Quinn v. Walters, 845 P.2d 206 (Or.App. 1992), appeal pending.

[71] 25 U.S.C. sec. 1916(a).

[72] 25 U.S.C. sec. 1915(a).  The Supreme Court in Holyfield called the placement section of the ICWA “the most important substantive requirement imposed on state courts.”  490 U.S. at 36-37.  Preferences are specified in the Act for foster care and adoptive placements as well.  25 U.S.C. sec. 1915(b).

[73] 25 U.S.C. sec. 1911(a).

[74] 25 U.S.C. sec. 1912(a) (emphasis added).

[75] E.g., Oregon Revised Statutes sec. 109.310(6); New Mexico Statutes Annotated Sec. 32A-5-27 D.

[76] Catholic Social Services, Inc. v. C.A.A., 783 P.2d 1159 (Alaska 1989).

[77] In Holyfield, the Supreme Court applied section 1911(c) to a voluntary adoption proceeding.  490 U.S. at 38 n.12.

[78] In some states, such as Alaska, adoption is a two part process, one part involving termination of parental rights and the other involving the adoption petition.  See Matter of J.R.S., 690 P.2d 10 (Alaska 1984).  An Indian tribe would have the right to intervene in the termination part of the proceeding under the ICWA, but not the adoption part.  In other states adoption is a unified process, where parental rights are formally terminated when the decree of adoption is entered.  Since this type of proceeding involves termination of parental rights as well as adoption, Indian tribes should have the right to intervene in an adoption proceeding in these states under section 1911(c).  See 25 U.S.C. 1903(1)(ii) (termination of parental rights proceeding is any action resulting in the termination of the parent-child relationship).

[79] J.R.S., supra; In re Baby Girl A., 282 Cal.Rptr. 105 (Cal.App. 4 Dist. 1991).

[80] Catholic Social Services, supra.

[81] In re Crystal K., 276 Cal.Rptr. 105 (Cal.App. 3 Dist. 1990).

[82] See In re Custody of S.B.R., 719 P.2d 154 (Wash.App. 1986).  An early case, Application of Bertelson, 617 P.2d 121 (Mont. 1980) held that the ICWA does not apply to “intra-family” custody disputes, but no other state has agreed with that decision.

[83] Matter of Adoption of T.N.F., 781 P.2d 973 (Alaska 1989).

[84] Matter of Adoption of T.N.F., 781 P.2d 973 (Alaska 1989).

[85] In re J.R., No. 57934 (Okla. Supreme Court, Feb. 2, 1982; 25 U.S.C. sec. 1903(9).

[86] Matter of Adoption of a Child of Indian Heritage, 543 A. 2d 925 (N.J. 1988). Establishment of paternity is not limited to state mandated paternity procedures.  The New Jersey Supreme Court adopted federal constitutional standards to analyze whether a father was a “parent” for purposes of the ICWA.

[87] Quinn v. Walters, supra; Matter of Appeal in Maricopa County Juv. Action No. A-25525, 667 P.2d 228 (Arix.App. 1983).

[88] 25 U.S.C. sec. 1903(6).  It is possible that the parent of an Indian child may no longer have the legal capacity to consent to the adoption of an Indian child once that child is in the custody of the Indian custodian under tribal law or custom.

[89] 25 U.S.C. sec. 1901(4).

[90] See Matter of Adoption of a Child of Indian Hertitage, 543 A.2d 925 ( N. J. 1988).

[91] 109 S. Ct. 1597, 1608-9.

[92] 109 S. Ct. 1597, 1610.

[93] Matter of Adoption of Baby Boy L., 643 P.2d 168 (Kan. 1982).

[94] E.g., Matter of S.C., 833 P.2d 1249 (Okla. 1992).  The Court in S.C. went so far as to state that the “existing Indian family” principle was not a judicial exception to the ICWA, but was the express intent of Congress in the Act.

[95] Matter of Adoption of Infant Boy Crews, 825 P.2d 305 (Wash. 1993).

[96] Other courts have refused to follow the Crews decision, finding it particularly inappropriate for state courts to set themselves up to decide if the ICWA should apply when Congress cited state courts as part of the problem which they intended to remedy by enacting the Act.  Matter of Baby Boy Doe, supra; Quinn v. Walters, supra.  See 25 U.S.C. sec. 1901(5).

[97] E.g., Matter of Adoption of Baade, 462 N.W.2d 485 (S.D. 1990) (overruling Claymore v. Serr, 405 N.W.2d 650 (S.D. 1987)  The South Dakota Supreme Court ruled that it had, in light of Holyfield, given too much weight to the interests of the parents as against the tribe in Claymore.

[98] In re Junious M., 193 Cal. Rptr. 40 (Cal.App. 1 Dist. 1983); In the Interest of Armell, 550 N.E.2d 1060 (Ill.App. 1 Dist. 1990).

[99] The Oklahoma Supreme Court in the S.C. case cited these proposed amendments as evidence that Congress supported its interpretation creating the Indian family exception, since the amendments were not passed, but this misrepresents the actual events that occurred.

[100] 25 U.S.C. sec. 1915(a).

[101] 44 Federal Register 67584 (Nov. 26, 1979).  Theses guidelines were not issued as regulations because the BIA was unsure of its authority to order state courts to implement its interpretation of the ICWA.

[102] 25 U.S.C. sec. 1915(e).

[103] 25 U.S.C. sec. 1913(c).

[104] In re Adoption of K.L.R.F., supra; Matter of Appeal in Pima County Juv. Action, supra.

[105] Matter of Adoption of a Child of Indian Heritage, supra.

[106] Mississippi Band of Choctaw v. Holyfield, supra; Matter of Adoption of Halloway.

[107] Matter of Adoption of a Child of Indian Heritage, supra; In re Crystal K., supra.  This rule is consistent with non-Indian custody cases that give first preference to the non-custodial parent when the custodial parent consents to adoption.

[108] Matter of Appeal in Maricopa County Juv. Action, supra; Matter of Adoption of a Child of Indian Heritage, supra.

[109] 25 U.S.C. sec. 1915(c).

[110] House Report at 23-24.

[111] Mississippi Band of Choctaw v. Holyfield, supra (quoting with approval Matter of Adoption of Halloway, supra).

[112] Matter of Adoption of Baade, supra; In re Adoption of Lindsey C., 280 Cal. Rptr. 194 (Cal.App. 1 Dist. 1991).

[113] In re Baby Girl A., supra.

[114] Matter of M.E.M., 725 P.2d 212 (Mont. 1986).

[115] Adoption of M. v. Navajo Nation, 832 P.2d 518 (Wash.App. 1992).

[116] 25 U.S.C. sec. 1914, which mandates invalidation of state court actions that violate the Act, does not apply to violations of the placement provisions.