ICWA established federal policy that an Indian child should remain in the Indian community.
ICWA restated that federally recognized Indian Tribes are sovereign entities that have the right to self-govern. While Indian Tribes are subject to federal laws, they have exclusive jurisdiction over all Indian child custody cases except divorce and delinquency.
This does not prevent Indian Tribes from waiving jurisdiction and keeping the child in the state system. In fact, several Tribes do not have the resources available to give a dependent child the specialized services that may be required. Tribes may waive their jurisdiction if it is felt it will benefit the child's development. ICWA also gives the Tribe's preference over placement a higher priority than what the state system may have laid out. This recognizes how the Indian culture has a broader sense of a family unit and a vested interest in making sure the child retains the cultural heritage. The tribal placement choice allows the Tribe to have direct input into how the Indian child will ultimately be raised and helps to maintain cultural identity.
The Indian Tribe's right to intervene in the state proceedings does not get waived. Even if the Tribe earlier passed jurisdiction to the state, they can later petition to have jurisdiction transferred back. ICWA gives them that option by going through the Bureau of Indian Affairs and using any agreements between the Tribe and the state.
Tribal intervention can be as little as being allowed to appear in court and listen. It can also include the right to discovery, calling witnesses, placing objections in state court, and can even include the right to veto a decision.
During the Senate hearings many cases came up where the parents or legal custodians were not informed of the hearings and procedures associated with their child's case. The guardians were also not always fully informed of their rights or the consequences of what they were agreeing to.
ICWA addresses these issues by granting the following rights to parents and custodians.
The right to a court-appointed lawyer.
The right to seek transfer of jurisdiction to the Tribal Court.
If the parent voluntarily terminated custody, they can rescind their decision and have the child returned to them immediately.
Two concerns regarding ICWA have been the delays caused by the notification requirement, and the difficulty in finding a placement the Indian Tribe will accept. Both of these concerns should not be considered problems. ICWA explains what options must be followed for the latter concern, and the former concern has an easy method to avoid long delays.
The delays due to notification are meant to protect the Indian Tribe by assuring that they will be informed of any Indian child severance case. But this should not be a stumbling block to a case. ICWA gives very specific time lines to be followed during notification. All notification is to be done with return-receipt mail. This gives proof that there was an attempt to notify interested parties AND the notification was received. ICWA also allows the state to notify the Tribe if a parent or guardian cannot be found. ICWA goes further by allowing notification to be mailed to the Bureau of Indian Affairs if the Tribe cannot be located. The case can resume ten days after any of the notifications are received. The only exception is if the parent, custodian, or Tribe request extra time to prepare for the case. ICWA allows them an additional 20 days. So the longest a case can be delayed by ICWA would be one month at the very beginning of the proceedings.
The second complaint addresses an issue created for the benefit of Indian Tribes. The Indian Tribe has a say in where the child will be placed. This is a very important option because it allows the Tribe to attempt to place the child in a home that will help the child learn and develop within the Indian culture.
Indian culture relies on strong family ties. As a result, foster care placement is allowed only when evidence is clear and convincing that placement at home will cause serious emotional or physical damage to the child. The evidence must also include expert testimony stating such damage will occur. An expert can be any of the following (in order of preference):
- Tribal member knowledgeable in family organization and child rearing practices.
- Lay expert with experience in Indian child and family services and knowledge of the social and cultural standards of the Tribe.
- Professional person with substantial education and experience working with Indian families and familiar with Indian cultural standards, particularly those of the child's Tribe.
- A professional person.
If foster care is required, the choices for placement are to be used in the following order:
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- A member of the extended family
- A Tribally-approved and licensed foster home
- A state licensed Indian foster home
- Other Tribally-approved placement.