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The Indian Child Welfare Act

Written by Legal Aid WV


Parents who have Native American heritage often have questions about the Indian Child Welfare Act and how it applies to their cases. The Indian Child Welfare Act (ICWA) is a federal law that protects children with Native American heritage from being separated from their culture and history. The ICWA promotes the stability of Indian (Native American and Alaska Native) children, keeps children connected to their communities, and protects Native American parents and tribes. The ICWA was created in 1978 to reduce the high number of Native American families being unnecessarily separated and to reduce the number of Native American children placed in non-Native American foster and adoptive homes. Even with the ICWA, Native American children are much more likely to be removed from their homes and communities than other children.

The ICWA affects any state child custody proceeding, either voluntary or involuntary, that could result in out-of-home placement of the child or that could prohibit the parent from regaining custody of the child at the parent’s request. It does not apply to custody proceedings between the child’s biological parents. The ICWA especially applies to child abuse and neglect cases and adoption cases.

Not all children who claim Native American heritage are subject to the protections of the ICWA, however. An “Indian child” is defined in the Indian Child Welfare Act, 25 U.S.C. § 1903(4), as a person under the age of eighteen (18) who is either a member or citizen of a federally-recognized Indian Tribe or is eligible for membership or citizenship in an Indian Tribe and is also the biological child of a member or citizen of an Indian Tribe. Claiming Native American heritage alone is not enough to utilize the protections of the ICWA. Membership in a federally-recognized tribe or community is a requirement.

Currently, there are five hundred seventy-three (573) Native American and Alaska Native tribes that are recognized by the Bureau of Indian Affairs. Each tribe has its own membership requirements and admission process. For example, in order to qualify for membership in the Eastern Band of the Cherokee, an applicant must be at least eighteen (18) years old, must prove that they have an ancestor named on the Baker Roll of 1924, and must have proof that they are at least one sixteenth (1/16) Cherokee by blood. The Baker Roll was created by Fred A. Baker who created an official census of all members of the Eastern Band of Cherokee in 1924.

Whether the ICWA applies is the first determination the court should make after identifying jurisdiction over a case. The ICWA does not mean that children cannot be removed from their homes through state court proceedings. The ICWA provides added protections and safeguards for Native American families throughout a court case to ensure that active efforts are provided to the family to prevent the removal of children, that placements within the child’s Native American community are identified when removal is appropriate, and that the child’s tribe and the child’s parents are given the opportunity to be actively involved in the proceeding.

TINY DISCLAIMER: This is general legal information. For guidance about your situation, talk to a lawyer.

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