Goals of ICWA

The primary goals of the ICWA are to protect the best interests of Native American children and to promote the security, survival, and stability of Native American families and tribes. Absent an order terminating parental rights, no child who comes within the scope of the ICWA can be adopted without the consent of the child's parents or of the child's Native American custodian. The procedures under the ICWA for obtaining a voluntary consent, as well as those for waiving consent, or for involuntary termination of parental rights are more protective of parental interests than are the analogous procedures for adoptions of non-Native American children. The entire proceeding may be held before a tribal court. If it is heard, instead, by a state court, the child's tribe has a right to intervene and to object to the placement preference of the child's parent or of a state adoption agency. A parent who originally consented to the adoption of a Native American child may withdraw consent until the decree of adoption is entered. For at least two years after an adoption decree is entered, a parent can nullify the adoption if the consent is shown to have been the product of fraud or duress. For an apparently indefinite time, Native American tribes or custodians can seek to vacate an adoption decree on grounds of other jurisdictional or procedural defects. If the decree is set aside, the child will be returned to the parent, unless the welfare of the child requires some other non-adoptive placement. Prospective adopters who have had informal custody of a Native American child for months, or even years, may have their adoption petitions denied, or they may discover that an apparently final adoption is subject to being vacated. In some circumstances, they may ultimately retain custody of the child as ''permanent guardians.'' In other circumstances, the child will be transferred to a Native American custodian who resides within a reservation.

Enactment of the ICWA

Passage of the Indian Child Welfare Act of 1978 (ICWA) occurred after an extensive Congressional investigation of how Native American children fared in child custody proceedings. The Congressional investigation found that a high percentage of Native American families are broken up by the removal of their children from them by nontribal public and private agencies and that a high percentage of such children are placed in non-Native American foster and adoptive homes and institutions. Congress also found that the states, exercising their legitimate jurisdiction over Native American child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Native American people and the cultural and social standards prevailing in their communities and families.

To rectify the inadequate and insensitive treatment disclosed by its investigation, Congress declared in the ICWA a commitment to promote the best interests of Native American children and to protect the stability and integrity of tribal communities. The ICWA establishes minimal federal jurisdictional, procedural, and substantive standards for any state or tribal court proceeding that involves the custody or placement of Native American children with someone other than their biological parents.

Goals and Scope of the ICWA

The ICWA's aim is to reverse any negative developments by drawing upon the official national policy of encouraging tribal self-determination. Congress declared in the Act that the United States has assumed responsibility ''as trustee'' to preserve and protect Native American tribes and their resources. This fiduciary responsibility includes a duty to protect the best interests of Native American children and to promote the stability and security of tribes and families. A basic assumption of the Act is that Native American children are essential tribal resources, on whom tribal survival depends, and hence tribal governing bodies, not parents, should determine the ways in which Native American children will be raised. In this view, the dual goals of protecting the interests of Indian children and promoting tribal stability are compatible with each other.

The ICWA attempts to fulfill federal trust responsibilities by clarifying and expanding the authority of tribal courts to adjudicate child custody proceedings, by establishing ''minimum Federal standards for the removal of Native American children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Native American culture, and by providing for assistance to tribes in the operation of child and family service programs.'' Throughout the Act are provisions designed to ensure that Native American tribes will be heard, either as tribal courts deciding cases according to tribal laws and customs or as parties in ICWA state court proceedings.

The ICWA applies when two conditions are met: first, there is a custody proceeding, as defined by the Act, and second, the proceeding concerns a Native American child. Once both conditions are met, the Act's jurisdictional and notice requirements come into play, as do the placement preferences and the provisions on parental consent to an adoption and revocation of consent.

Children Within the Scope of ICWA

The Act defines an ''Indian child'' as an unmarried person under 18 who is either a member of a Native American tribe, or the biological child of a member of a tribe and eligible for membership in the tribe. If a child is eligible for membership in more than one tribe then the tribe with which the child has ''the more significant contacts'' will be entitled to whatever rights the Act recognizes for the child's tribe. Presumably, the other tribe, the one with the less significant contacts, will have no rights under the Act. In order for a child to be eligible for membership in any tribe, the legal status of the child's mother and father, as ''parent'' and as tribal members, has to be established.

A ''parent'' is any biological parent of a Native American child, whether or not that parent is himself or herself Native American, or any Native American adoptive parent of a Native American child, who was adopted under state law or under tribal law or custom. Specifically excluded from the category of ''parent'' is any unwed father whose paternity has not been acknowledged or established. A child's mother is a ''parent,'' as is the child's father if married to the mother at the time of the child's birth. As with most state adoption statutes, however, the father of a child born out of wedlock is not a ''parent'' pursuant to the ICWA unless he takes certain affirmative steps to establish his legal status. The ICWA does not indicate how or when an unwed father must establish or acknowledge his paternity.

In order for a child to be eligible for membership in a Native American tribe by virtue of his father's membership in that tribe, it may be necessary for the father to meet the ICWA definition of ''parent.'' If this is so, the child of an unwed Native American father will not be considered eligible for membership in his father's tribe until that father's paternity is legally acknowledged or established.

The determination of the child's status as an "Indian child" has to be made before a final order of termination or adoption is entered. A proceeding that begins with a good-faith assumption that a child is not subject to ICWA may be challenged as not meeting ICWA requirements if, at any time before its completion, the child is determined to come within ICWA.