About ICWA

Oklahoma is home to 37 of the 562 federally recognized Indian tribes and has one of the highest populations of Native American citizens. It is important that all partners involved in providing services to families and children involved with Child Welfare Services have awareness and knowledge of ICWA.

The federal Indian Child Welfare Act or ICWA was passed in 1978 as the result of Congressional hearings, which found that Indian children were removed from their homes at a much higher rate than non-Indian children. Many times the removals were unwarranted. In most of the cases, after removal, Indian children were placed in non- Indian homes located away from their tribes. Many times the Indian children were never returned to their families or their tribes. In an effort to support and strengthen the federal Indian Child Welfare Act, Oklahoma enacted the Oklahoma Indian Child Welfare Act in 1982. Both the federal Indian Child Welfare Act and Oklahoma Indian Child Welfare Act are sometimes referred to as the Indian Child Welfare Act or by the acronym ICWA.

The stated purposes of ICWA are to:

  • Protect the best interests of Indian children
  • Promote the stability and security of Indian tribes and families

ICWA recognizes that tribes are sovereign nations and the tribes’ children are the most valuable resource of the tribes. The loss of children from a tribe threatens the tribe’s stability. For a tribal child, the loss of contact with the tribe results in the loss of culture and heritage.

ICWA governs the jurisdiction, placement, termination of parental rights and adoption of Native American children. This law sets minimum federal standards that apply in child custody proceedings involving an Indian child.

An Indian child is defined by ICWA as an unmarried person under 18 and is either:

  1. A member of an Indian tribe
  2. Is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe

Tribes determine rules and procedures for membership in their respective tribe. Courts are responsible for judicial determinations as to the status of the child and the applicability of ICWA. These minimum standards keep tribal children connected with their tribes and protect against unnecessary removals of Indian children from their families.

ICWA applies to child custody proceedings involving Indian children. ICWA defines child custody proceedings as any:

  • Foster care placement
  • Termination of parental rights
  • Pre-adoptive placement
  • Adoptive placement

ICWA establishes the following order of preference for foster care and pre-adoptive placement:

  • A member of the Indian child’s extended family
  • A foster resource home licensed, approved or specified by the Indian child’s tribe
  • An Indian foster resource home licensed or approved by an authorized non-Indian licensing authority
  • An institution for children approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the Indian child’s needs

An Indian tribe may specify a different order of preference by tribal resolution. The court must address efforts by DHS to place within the established order of preference for placement. Placement preferences must be followed, except when good cause is shown in court.

ICWA requires notice to the child’s Indian tribe when there is court involvement. The tribe may intervene in the case and/or may seek to transfer the case to tribal court. The tribal Indian Child Welfare social worker may also be involved in the court proceeding and may participate by visiting the child, visiting the child’s parents and by appearing in court.

ICWA also provides for states and tribes to enter into agreements regarding the care and custody of Indian children. Oklahoma has agreements with 35 of the 37 federally recognized Oklahoma tribes. These agreements provide for the approval of tribal foster homes by tribes and the payment of foster care reimbursement by DHS when Indian children in either tribal or state custody are placed in tribal foster homes.

DHS values the partnership of tribes in the provision of services to Indian children and families. Cooperation and communication between DHS and tribes result in more positive outcomes for tribal children and families.

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