ICWA provides a variety of procedural and substantive protections
in child custody proceedings involving American-Indian children.
ICWA provisions only apply to involuntary proceedings, others
apply in voluntary proceedings as well.
protection cases often involve the Michigan Indian Child Welfare
Agency, a non-profit organization under contract with the FIA
to assist in cases involving American-Indian children.
Congress passed the Indian Child Welfare Act (ICWA),1
American-Indian children faced a disproportionately high risk of removal
from their homes by non-American-Indian social workers. Most of these
children ended up in non-American-Indian homes, which led to the break-up
of American-Indian families and ultimately to the loss of future tribal
its enactment, the ICWA clearly has had positive results, but mistakes
continue to be made in interpretation and application of the ICWA, mistakes
that may be easily corrected. Following a brief description of the protections
the Act provides, we will discuss a few common myths that lead to mistakes
in ICWA cases.
ICWA provides a variety of procedural and substantive protections in a
child custody proceeding involving an American-Indian child. A child custody
proceeding is any foster care placement, termination of parental rights,
pre-adoptive placement, or adoptive placement, other than in the context
of a criminal action or a divorce where placement is with a biological
An American-Indian child is an unmarried person under age eighteen who
is (1) a member of a federally recognized tribe or (2) is eligible for
membership in a federally recognized tribe and is the biological child
of a member of a federally recognized tribe.4 Now,
back to the myths.
think the ICWA applies only to involuntary proceedings, such as forced
termination of parental rights. While it is true that certain ICWA provisions
apply only to involuntary proceedings (e.g., tribes have a right to notice
in involuntary proceedings only) other ICWA provisions apply in voluntary
proceedings as well. For example, Section 1911(a) grants tribes exclusive
jurisdiction over any child custody proceeding involving an American-Indian
child who resides or is domiciled on a reservation. Section 1911(b) provides
a preference for tribal jurisdiction for any state court proceeding for
foster care placement or termination of parental rights where the American-Indian
child does not reside on the reservation. Section 1911(c) gives tribes
a right to intervene in any state court foster care placement of or termination
of parental rights to an American-Indian child. Section 1915(a) lists
placement preferences for adoption proceedings involving an American-Indian
child. Each of these provisions applies whether the proceeding is involuntary
ICWA also provides specific procedures for voluntary release of parental
rights to an American-Indian child.5
One major concern for American-Indian tribes and American-Indian families
in Michigan is the Safe Delivery of Newborns Act (‘‘Safe Delivery
The Safe Delivery Act allows a parent to abandon a newborn (defined as
a child who is not more than 72 hours old) to an emergency service provider
(defined as a fire department, police station, or hospital). The problem
with the Safe Delivery Act, from an ICWA perspective, is that it allows
parents to abandon a child anonymously. If a court lacks the identity
of the parent, it has no way to determine whether the child is an American-Indian
child and thus subject to Section 1913 (voluntary termination under the
ICWA) or Section 1915 (adoptive placement under the ICWA). Consequently,
although the Safe Delivery Act has good intentions, it interferes with
of the ICWA cases decided by Michigan courts involve abuse and neglect
proceedings. However, it is false to assume that these are the only proceedings
to which the ICWA applies. Foster care placements, one type of American-Indian
child custody proceeding under the ICWA, have been found to include guardianships
and custodial arrangements with third parties.7 For
example, a grandparent’s petition for guardianship over a grandchild
may implicate the ICWA. The Act probably also applies to step-parent adoptions.
Consequently, all family law practitioners should be familiar with the
ICWA, regardless of whether they handle abuse and neglect proceedings.
Michigan case law suggests that a state court need not apply the ICWA
if no tribe intervenes.8
This is false. If the case is a child custody proceeding as defined by
the Act, and it involves an American-Indian child, the ICWA applies.9 Tribes
have a right to intervene in many cases (see Section 1911(c)) but lack
of tribal intervention in no way relieves a state court of the obligation
to apply the ICWA.
often ask us how the ICWA affects divorce cases. Simply put, it doesn’t.
The ICWA expressly excludes divorce from the definition of child custody
proceeding, at least when placement is with one of the parents.10 Furthermore,
the Bureau of Indian Affairs (BIA) Guidelines for State Court Indian
Child Custody Proceedings, non-binding guidelines interpreting the Act,
call for a broad reading of the divorce exclusion. According to the
BIA’s interpretation of the Act, the ICWA does not apply to any
custody action between biological parents, whether or not in the context
of a divorce, where the child is placed with a parent. If a court is
adjudicating a custody action between biological parents, the ICWA would
apply only if the court placed a child with a third party.
also often ask how the ICWA applies when a juvenile is removed from the
home in conjunction with being charged with a criminal offense. Unless
the alleged crime is a juvenile status offense, the ICWA does not apply.
The proceeding may become a child custody proceeding, however, if the
child is placed outside the home, not as punishment, but because of conditions
in the child’s home.
this may be true generally, it is not true with respect to the ICWA. By
its terms, the ICWA protects only federally recognized tribes and their
A federally recognized tribe is one with an officially recognized government-to-government
relationship with the federal government. A list of federally recognized
tribes can be found in the Federal Register under the heading ‘‘Indian
Entities Recognized and Eligible to Receive Services from the United States
Bureau of Indian Affairs.’’
FIA’s policy is broader than the ICWA with respect to this point.
According to FIA policy, tribes that have an officially recognized government-to-government
relationship with the state of Michigan (i.e., state recognized tribes)
are treated the same as federally recognized tribes for purposes of the
ICWA. Of course, FIA policy is not binding on the courts. Still, the policy
may prove helpful when trying to persuade the FIA to take a certain action
regarding a child who is a member of a state-recognized tribe.
ICWA contains no blood quantum requirement to determine whether a particular
person is an American Indian. Rather, the ICWA hinges on eligibility for
membership in a federally recognized tribe. Each of the 562 tribes has
its own eligibility criteria. Some have a blood quantum requirement of
1/8 or 1/4, while others have no minimum blood quantum requirement. Thus,
you cannot assume that a client or a child is not American Indian for
purposes of the ICWA simply because he or she has a small percentage of
should be done if a party believes he or she has some American-Indian
heritage? Notify the court and any petitioning party in the matter,
which obligates the petitioning party to notify the child’s tribe,
if it can be located or determined, or the BIA of the child custody
proceeding. This allows tribes to determine for themselves whether a
child is a member of the tribe or is eligible for membership, an opportunity
envisioned in the ICWA.12
parent in a removal or termination proceeding does not carry the initial
burden of proving tribal membership by some concrete means such as possession
of an enrollment card.13
At the outset of any removal or termination proceeding, the court must
ask whether the child is a member of or is eligible for membership in
a federally recognized tribe.14 Once
a court has reason to believe a case involves an American-Indian child,
the petitioning party must notify the tribe or the BIA. Thus, while
a case may appear outside the applicability of ICWA at the outset, courts
often learn that the ICWA applies only after notifying the tribe or
to popular belief, a non-American-Indian parent of an American-Indian
child receives many of the same ICWA protections as an American-Indian
parent. Thus, if the FIA seeks to remove an American-Indian child from
the home of his American-Indian mother and non-American-Indian father,
the ICWA protects both parents. Furthermore, the ICWA does not prefer
placement with an American-Indian relative over placement with a non-American-Indian
relative. The first placement preference for foster care or adoption of
an American-Indian child is simply with a relative. Only after the possibility
of placement with a relative has been exhausted does the ICWA prefer placement
in an American-Indian home.
protection cases often involve the Michigan Indian Child Welfare Agency
(MICWA). MICWA is a non-profit organization under contract with the FIA
to assist in cases involving American-Indian children. The MICWA’s
roles include recruiting American-Indian foster homes, placing children
in foster homes, home studies, tribal affiliation identification,
and recommending adoptive placements. The MICWA certainly supports enforcement
of the ICWA and tribal interests. However, as an FIA contractor, MICWA’s
position could be potentially adverse to a parent in a child protection
or adoption case.
are many sources of ICWA information. Here are a few suggestions for starting
your ICWA resource library:
The Indian Child Welfare Act Handbook—A Legal Guide to the
Custody and Adoption of Native American Children, by B. J.
Jones, published by the American Bar Association Section of Family Law,
1995. This resource provides a good overview of the ICWA, including
chapters on Applicability, Jurisdiction, Procedure and Placement.
Bureau of Indian Affairs—Guidelines for State Courts; Indian
Child Custody Proceedings, Federal Register, 1979.
ICWA Manual, to be published by Michigan Indian Legal Services
in Fall 2004.
Indian Child Welfare Act is meant to protect the future of American-Indian
children, American-Indian homes, and American-Indian tribes. Common myths
interfere with that vital protection. We hope our tips will assist practitioners
and courts to apply the ICWA properly. Remember our motto: When in doubt,
notify the tribe or the BIA and let them decide whether the case involves
an American-Indian child.
1. 25 USC 1901, et seq., in
2. H.R. Rep. 95-1386, 1978 U.S.C.C.A.N.
4. 25 USC 1903(4).
See Section 1913.
See In re Custody of AKH, 502 NW2d 790 (Minn App 1993).
8. See In re NEGP, 245
Mich App 126, 133–34 (2001).
See Section 1911(a) and (b), and 1912.
12. See In re IEM, 233
Mich App 438, 447 (1999). Courts are to defer to tribes in determining
the eligibility for membership of a given individual.
In re IEM, supra, at 446.
14. MCR 3.935(B)(5), 3.965(B)(9).