This is a DRAFT presentation, only including court-related items for the Indian Child Welfare Act, applicable in court settings. There is much more to the ACT outside of these slides. This is just a sample for public consumption, and is not all-inclusive.

1. Indian Child Welfare Act
The bare bones basics of P.L. 93-608 and a “smidge” of history
Rachelle Pavao Goldenberg, MSW
Seawolf Consulting
www.seawolfconsulting.com

2. It starts with national policy...

3. It starts with national policy...
The Civilization Act (early 1800’s)

4. It starts with national policy...
The Civilization Act (early 1800’s)
The Removal Act (1830)

5. It starts with national policy...
The Civilization Act (early 1800’s)
The Removal Act (1830)
Indian Boarding Schools

6. It starts with national policy...
The Civilization Act (early 1800’s)
The Removal Act (1830)
Indian Boarding Schools
The Dawes Act (1887)

7. It starts with national policy...
The Civilization Act (early 1800’s)
The Removal Act (1830)
Indian Boarding Schools
The Dawes Act (1887)
The BIA Relocation Program (1950’s) - Urban

8. It starts with national policy...
The Civilization Act (early 1800’s)
The Removal Act (1830)
Indian Boarding Schools
The Dawes Act (1887)
The BIA Relocation Program (1950’s) - Urban
The BIA/CWLA Indian Adoption Project (1957)

9. It starts with national policy...
The Civilization Act (early 1800’s)
The Removal Act (1830)
Indian Boarding Schools
The Dawes Act (1887)
The BIA Relocation Program (1950’s) - Urban
The BIA/CWLA Indian Adoption Project (1957)
PL- 83-280 - State control over tribes (some)

10. Realization in the 1970’s

11. Realization in the 1970’s
25-35% of all American Indian / Alaska
Native had been removed from their families.

12. Realization in the 1970’s
25-35% of all American Indian / Alaska
Native had been removed from their families.

13. It should be a law...
With the support of advocates across the country,
in 1978, a law was passed.
This law was the
Indian Child Welfare Act.

14. Who does this apply to?

15. Who does this apply to?
Indian children that are unmarried, under 18, and is
enrolled in or eligible for enrollment (biologically) in a
federally recognized Indian tribe.

16. Who does this apply to?
Indian children that are unmarried, under 18, and is
enrolled in or eligible for enrollment (biologically) in a
federally recognized Indian tribe.
ALERT: YOU CANNOT TELL IF A
CHILD IS NATIVE BY LOOKING - YOU
MUST ASK!

17. Who does this apply to?
Indian children that are unmarried, under 18, and is
enrolled in or eligible for enrollment (biologically) in a
federally recognized Indian tribe.
ALERT: YOU CANNOT TELL IF A
CHILD IS NATIVE BY LOOKING - YOU
MUST ASK!
The court and welfare/probation must inquire whether
a child is or may be an Indian Child

18. Who does this apply to?
Indian children that are unmarried, under 18, and is
enrolled in or eligible for enrollment (biologically) in a
federally recognized Indian tribe.
ALERT: YOU CANNOT TELL IF A
CHILD IS NATIVE BY LOOKING - YOU
MUST ASK!
The court and welfare/probation must inquire whether
a child is or may be an Indian Child

19. What is a “Federally
Recognized” tribe?

20. What is a “Federally
Recognized” tribe?
Any tribe, band, nation, Alaskan Native Village or other
organized group or community of Indians that has been
recognized as eligible by the Federal Government

21. ICWA Applies:

22. ICWA Applies:
...in any action where a child is being removed from the
custody of the parent/Indian Custodian when:

23. ICWA Applies:
...in any action where a child is being removed from the
custody of the parent/Indian Custodian when:
a child enters foster care, pre-adoptive, and
adoptive placements, probate guardianships
(foster homes / institutions)

24. ICWA Applies:
...in any action where a child is being removed from the
custody of the parent/Indian Custodian when:
a child enters foster care, pre-adoptive, and
adoptive placements, probate guardianships
(foster homes / institutions)
a parent loses or forfeits their parental rights,
including step-parent adoption

25. ICWA does not apply:

26. ICWA does not apply:
during custody proceedings in a divorce when
determining which parent to place the child with.

27. ICWA does not apply:
during custody proceedings in a divorce when
determining which parent to place the child with.
juvenile detention proceedings (mostly)

28. ICWA does not apply:
during custody proceedings in a divorce when
determining which parent to place the child with.
juvenile detention proceedings (mostly)
when placement is temporary (i.e. guardianship) where
the parent/Indian Custodian can demand return of the

29. Main Points

30. Main Points
Determination of Indian Child (the ask)

31. Main Points
Determination of Indian Child (the ask)
Notice to the tribes and parents

32. Main Points
Determination of Indian Child (the ask)
Notice to the tribes and parents
Evidence for Removal

33. Main Points
Determination of Indian Child (the ask)
Notice to the tribes and parents
Evidence for Removal
Expert Witness

34. Main Points
Determination of Indian Child (the ask)
Notice to the tribes and parents
Evidence for Removal
Expert Witness
Active Efforts

35. Main Points
Determination of Indian Child (the ask)
Notice to the tribes and parents
Evidence for Removal
Expert Witness
Active Efforts
Placement Preference

36. Evidence for removal:

37. Evidence for removal:
Foster care “clear and convincing evidence that continued
custody of a child by the parent is likely to result in
serious emotional or physical damage to the child.” (this is a
higher standard than traditional “reasonable suspicion” for remova - via an “expert witness”l)

38. Evidence for removal:
Foster care “clear and convincing evidence that continued
custody of a child by the parent is likely to result in
serious emotional or physical damage to the child.” (this is a
higher standard than traditional “reasonable suspicion” for remova - via an “expert witness”l)
Termination: “beyond a reasonable doubt”
Both determinations must include
a Qualified Expert Witness

39. ICWA Notice

40. ICWA Notice
The court must inquire as to whether the child is an Indian
Child to all tribes which the child MAY be enrolled or
eligible for enrollment & BIA.

41. ICWA Notice
The court must inquire as to whether the child is an Indian
Child to all tribes which the child MAY be enrolled or
eligible for enrollment & BIA.
Registered or certified mail return receipt requested –
receipt must be filed in the court file

42. ICWA Notice
The court must inquire as to whether the child is an Indian
Child to all tribes which the child MAY be enrolled or
eligible for enrollment & BIA.
Registered or certified mail return receipt requested –
receipt must be filed in the court file
Notice must be sent in this manner for every hearing to
parents and tribes until it is determined that the child is
not ICWA eligible.

43. ICWA Notice
The court must inquire as to whether the child is an Indian
Child to all tribes which the child MAY be enrolled or
eligible for enrollment & BIA.
Registered or certified mail return receipt requested –
receipt must be filed in the court file
Notice must be sent in this manner for every hearing to
parents and tribes until it is determined that the child is
not ICWA eligible.
If information is later received indicating
ICWA eligibility, notice must resume.

44. ICWA Court Timeline:

45. ICWA Court Timeline:
Wait 10 days after tribe & parent/Indian custodian
receive notice to proceed

46. ICWA Court Timeline:
Wait 10 days after tribe & parent/Indian custodian
receive notice to proceed
If requested, an additional 20 days to prepare

47. ICWA Court Timeline:
Wait 10 days after tribe & parent/Indian custodian
receive notice to proceed
If requested, an additional 20 days to prepare
ICWA applied until proven otherwise (minimum 60 days)

48. ICWA Court Timeline:
Wait 10 days after tribe & parent/Indian custodian
receive notice to proceed
If requested, an additional 20 days to prepare
ICWA applied until proven otherwise (minimum 60 days)
ICWA will be applied If tribe or BIA later confirms
status as an Indian child.

49. Tribal Intervention

50. Tribal Intervention
The child’s tribe has the right to intervene at any point.

51. Tribal Intervention
The child’s tribe has the right to intervene at any point.
When the tribe intervenes, they are a party of the case
and may designate any person as their representative

52. Tribal Intervention
The child’s tribe has the right to intervene at any point.
When the tribe intervenes, they are a party of the case
and may designate any person as their representative
All parties have right to examine all reports or documents
related to case

53. Tribal Intervention
The child’s tribe has the right to intervene at any point.
When the tribe intervenes, they are a party of the case
and may designate any person as their representative
All parties have right to examine all reports or documents
related to case
If the tribe does not intervene, they may still
express placement preferences, assist in
identifying an expert witness.

54. Qualified Expert Witness

55. Qualified Expert Witness
Individuals most likely to meet the requirements to be a
qualified expert witness are:

56. Qualified Expert Witness
Individuals most likely to meet the requirements to be a
qualified expert witness are:
Tribal member recognized by community as
knowledgeable in tribal customs
as they pertain to family organization and childrearing practices

57. Qualified Expert Witness
Individuals most likely to meet the requirements to be a
qualified expert witness are:
Tribal member recognized by community as
knowledgeable in tribal customs
as they pertain to family organization and childrearing practices
Professional in children's services with extensive tribal
cultural knowledge

58. Qualified Expert Witness
Individuals most likely to meet the requirements to be a
qualified expert witness are:
Tribal member recognized by community as
knowledgeable in tribal customs
as they pertain to family organization and childrearing practices
Professional in children's services with extensive tribal
cultural knowledge
A professional with experience in their specialty

59. Qualified Expert Witness
Individuals most likely to meet the requirements to be a
qualified expert witness are:
Tribal member recognized by community as
knowledgeable in tribal customs
as they pertain to family organization and childrearing practices
Professional in children's services with extensive tribal
cultural knowledge
A professional with experience in their specialty

60. Active vs. Reasonable
Active efforts are not the same as reasonable efforts, and
they must be applied throughout the case.
Reasonable Active
Arranging services and diligently helping
Providing referrals for services
families engage in those services.
Case Management - Engaging with the client directly, in
monthly (minimum) contact person, and frequently
Culturally appropriate service plans and
Usual contracted service
specific tiered placements
providers and case plans
(tribal input)

61. Placement Preferences
Foster Care Adoption
Extended Family Extended Family
Tribal Foster Home Tribal Member
Non-Tribal Indian Foster Home Other Indian Family
Tribal approved institution Other as determined
Other as determined by the tribe by tribe.
The court must follow preferences
unless they determine good cause not to

62. Source Materials
P.L. 93-608 (1978)
25 USC Sections 1901-1963
25 CFR Sections 23.1-23.83
44Fed. Reg.67,584 (1979)

63. !ank Y"

64. !ank Y"
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65. !ank Y"
Please visit us online at:
SeawolfConsulting.com

66. !ank Y"
Please visit us online at:
SeawolfConsulting.com

67. !ank Y"
Please visit us online at:
SeawolfConsulting.com
Phone: 877-777-6443

68. !ank Y"
Please visit us online at:
SeawolfConsulting.com
Phone: 877-777-6443
Follow me @RPGoldenberg

69. !ank Y"
Please visit us online at:
SeawolfConsulting.com
Phone: 877-777-6443
Follow me @RPGoldenberg
Like us: facebook.com/SeawolfConsulting