Indian Child Welfare Act of 1978 (ICWA): Federal Rules for Custody Cases Involving Indian Children

This bill is law. It was approved November 8, 1978, as Public Law 95-608 Public Law 95-608, 92 Stat. 3069 (1978).

The short answer

The Indian Child Welfare Act of 1978, or ICWA, sets federal minimum standards for removing Indian children from their families and placing them in foster or adoptive homes Public Law 95-608, 92 Stat. 3069 (1978). In state court foster care and termination cases involving an Indian child, it requires notice to the parent and the tribe, a right to appointed counsel for a parent who cannot afford one, "active efforts" to keep the family together, and high standards of proof Public Law 95-608, 92 Stat. 3069 (1978).

Congress.gov lists the bill's final action as "Public Law 95-608" Congress.gov, S. 1214 (95th Congress), bill record.

What it changes

Who it covers. An "Indian child" is an unmarried person under 18 who is a member of a tribe, or who is eligible for membership and is the biological child of a member Public Law 95-608, 92 Stat. 3069 (1978). Congress said its policy was to protect the best interests of Indian children and the stability of tribes and families by setting minimum federal standards for removals Public Law 95-608, 92 Stat. 3069 (1978).

Which court decides. A tribe has exclusive jurisdiction over a custody case for an Indian child who lives or is domiciled on its reservation, unless federal law gives the State jurisdiction Public Law 95-608, 92 Stat. 3069 (1978). For a child who does not live there, a state court must transfer a foster care or termination case to the tribe on petition, unless there is good cause not to or a parent objects Public Law 95-608, 92 Stat. 3069 (1978). The tribal court may decline the transfer Public Law 95-608, 92 Stat. 3069 (1978). The Indian custodian and the tribe may intervene at any point Public Law 95-608, 92 Stat. 3069 (1978).

Notice and time to prepare. In an involuntary case, the party asking for foster care placement or termination must notify the parent or Indian custodian and the tribe by registered mail, return receipt requested Public Law 95-608, 92 Stat. 3069 (1978). No hearing may be held until at least ten days after they receive notice Public Law 95-608, 92 Stat. 3069 (1978), and they can ask for up to twenty more days to prepare Public Law 95-608, 92 Stat. 3069 (1978).

Lawyers and records. If the court finds a parent or Indian custodian indigent (unable to pay), that person has a right to court-appointed counsel in any removal, placement, or termination proceeding Public Law 95-608, 92 Stat. 3069 (1978). Each party may examine all reports and documents filed with the court that a decision may be based on Public Law 95-608, 92 Stat. 3069 (1978).

Active efforts and proof. Before foster care placement or termination, the party asking for it must show the court that active efforts were made to provide services meant to prevent the breakup of the Indian family, and that those efforts failed Public Law 95-608, 92 Stat. 3069 (1978). Foster care placement requires clear and convincing evidence, including testimony of qualified expert witnesses, that keeping the child with the parent or custodian is likely to cause serious emotional or physical damage Public Law 95-608, 92 Stat. 3069 (1978). Termination requires that showing "beyond a reasonable doubt" Public Law 95-608, 92 Stat. 3069 (1978).

Voluntary consent. A parent's consent to foster care or termination counts only if it is written and recorded before a judge Public Law 95-608, 92 Stat. 3069 (1978). Consent given before the child's birth, or within ten days after, is not valid Public Law 95-608, 92 Stat. 3069 (1978). A parent or custodian may withdraw consent to foster care at any time Public Law 95-608, 92 Stat. 3069 (1978). The child, a parent or custodian, or the tribe may ask a court to invalidate an action that broke sections 101, 102, or 103 Public Law 95-608, 92 Stat. 3069 (1978).

Placement preferences. For adoption, preference goes, unless there is good cause, to the child's extended family, then other members of the child's tribe, then other Indian families Public Law 95-608, 92 Stat. 3069 (1978). A child in foster care must be placed in the least restrictive setting that most approximates a family Public Law 95-608, 92 Stat. 3069 (1978), with first preference to a member of the child's extended family Public Law 95-608, 92 Stat. 3069 (1978).

Timing and programs. Most court rules in Title I did not reach state cases started or completed before 180 days after enactment Public Law 95-608, 92 Stat. 3069 (1978). Title II authorized grants for tribal child and family service programs aimed at preventing the breakup of Indian families Public Law 95-608, 92 Stat. 3069 (1978).

How it relates to Texas

Texas statutes refer to ICWA directly:

• Chapter 152 of the Texas Family Code does not apply to a custody case involving an Indian child to the extent ICWA governs it Tex. Fam. Code §152.104. Texas courts must recognize and enforce a tribe's custody determination made in substantial conformity with that chapter's jurisdiction standards Tex. Fam. Code §152.104.
• Texas's rule against denying or delaying an adoption because of race or ethnicity does not apply to a case subject to ICWA Tex. Fam. Code §162.015.
• At the full adversary hearing in a Texas CPS case, the judge must ask everyone present whether the child or family has Native American heritage and identify any tribe the child may be associated with Tex. Fam. Code §262.201(f).

If your child may have tribal ties, you can ask your lawyer whether ICWA applies. In 2023 the U.S. Supreme Court rejected all of the challengers' claims against ICWA, some on the merits and others for lack of standing Haaland v. Brackeen, 599 U.S. 255 (2023). See Haaland v. Brackeen (2023): The Court Rejects Challenges to the Indian Child Welfare Act.

Which laws it affects

• It created the Indian Child Welfare Act, at 25 U.S.C. Section 1901 and following Tex. Fam. Code §152.104.
• Texas Family Code §§152.104, 162.015, and 262.201(f) refer to it or work alongside it Tex. Fam. Code §152.104 Tex. Fam. Code §162.015 Tex. Fam. Code §262.201(f).

Related

• Haaland v. Brackeen (2023): The Court Rejects Challenges to the Indian Child Welfare Act
• S. 4179, AI/AN CAPTA: Child Abuse Prevention Funding for Tribes (Pending, 119th Congress)
• Your Right to a Lawyer in a Texas CPS Case
• The Texas CPS Investigation Process, Step by Step (Family Code §§261.301–261.302)