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The Indian Child Welfare Act Examined

Because of the special circumstances surrounding Native American children, the Indian Child Welfare Act (ICWA) was created in 1978.

The Act requires child welfare organizations across the nation, including Child Protective Services (CPS) in Texas, to take special care and present accommodations to the alleged victim-child, their family and the Indian tribe to which they belong.

What do people get wrong about ICWA?

ICWA is celebrating its fortieth year since being passed as federal law but there are some misconceptions and misunderstandings that surround its meaning and effect on families in Texas and around the country. Let’s discuss some of those misconceptions before we go any further with today’s blog post.

For starters, an Indian tribe does not have to initiate proceedings under ICWA for it to apply. If your child is being investigated as a possible victim of abuse or neglect by you or any other adult, and your child is a member (or is eligible to be a member) of an Indian tribe then ICWA applies. CPS will need to follow specific guidelines in placing your child with family members of yours that are members of that same tribe. The notice needs to be provided by the court to the tribe to allow them to send a representative to appear in any hearing that is held.

You, your child or your child’s grandparent do not need to possess a membership card for an Indian tribe in order for ICWA to apply, either. A card does not need to be presented to a CPS caseworker or to a judge or attorney for the State of Texas. The protections and accommodations inherent in ICWA apply automatically. This does not matter if the Indian tribe to which your child does not respond to the notice of hearing.

In what situations does ICWA actually apply?

We know what ICWA generally is, who it affects and what some misconceptions surrounding the law are. Now we need to examine in what situations the law is actually applicable. Any child custody case that involves a Native American child when a court has any reason to know that the child is a Native American will cause ICWA to be applicable.

We have already been discussing ICWA in the context of a CPS case. If your child is going to be placed in foster care, if your parental rights are possibly going to be terminated or if your child is going to be going through the adoption process then ICWA’s protections and accommodations will be a part of your child’s case.

Defining an Indian Child

I understand that “Indian” is not the preferred term to utilize when referring to children of Native ancestry in the United States. However, the federal law utilizes Indian and not Native American so I will use both terms pretty freely. I have no animus or anything like that towards Native-born children, their parents or their families. Now then- back to our blog post for today.

When we use the term Indian child we are referring to an unmarried person under age 18 who is a member of an Indian tribe, is eligible to become a member of an Indian tribe or is the biological child of a member of an Indian tribe. For the record, there are over 500 recognized tribes in the United States that are recognized by our federal government.

The State of Texas through the Department of Family and Protective Services (DFPS) works closely with the three tribes that have reservations here in Texas. Often times if your child lives on a reservation he or she will have additional protections apply to him or her. DFPS and these tribes have written agreements between them on how to handle certain kinds of cases and situations, also.

We discussed earlier how ICWA applies when a court has reason to know that a child is a part of a recognized Indian tribe in the United States. A judge has “reason to know” of this when they are told by a party to the case or a state agency like CPS that the child is a member of an Indian tribe. If your child lives on a reservation then a judge will have reason to know that ICWA is applicable.

Identifying ICWA cases

If a court does not identify a child as being a member of a tribe or being a relative to a member of a tribe there may be a problem having ICWA attach to the case right off of the bat. A judge is required by the Texas Family Code to ask the parties to a case throughout the proceedings if the child or the child’s family are members of a recognized tribe and the name of the tribe that the child is associated with.

In the event that a final order is issued without taking into consideration ICWA the order can be invalidated. Finding a permanent home for an Indian child will thus be delayed due to the invalidation of the order. The court and all parties will have to go back and apply ICWA to the case and insert language into the order that all of the protections afforded to the child through ICWA have been dealt with appropriately.

The best practice to be used by attorneys, judges and CPS personnel is to think about whether or not your child could be a part of an Indian tribe from the moment that the investigation begins. This ensures that the proper protocol will be followed by the very beginning of the case.

Often times CPS will interview you and other family members and will specifically ask about your knowledge of any Native ancestry or affiliation within your family. Each time a new family member is contacted a question needs to be asked about that person’s knowledge of any possible Indian tribe affiliation.

CPS will go into some detail in their forms of documenting the fact that these questions have been asked. Mistakes do occur on occasion, often times through no fault of the court or the CPS caseworkers, but these steps are followed closely in order to minimize the incidence of those type of mistakes.

Who has jurisdiction to hear a case involving an Indian child?

Either a state family law court or an Indian tribal court will hear a case regarding the foster care placement or adoption of your child. Where your child is living and whether any party has requested transferring the case to a tribal court will determine this. In the event that your child does not reside on a reservation but is a member of the tribe nonetheless, there is a presumption in favor of the tribal court’s jurisdiction over the state family law court.

If your child and you live primarily on a reservation but your child is living temporarily away from the reservation then CPS can act to remove your child from a dangerous environment even if the trial court has jurisdiction over your child’s case. Once it is clear that your child is not in harm’s way any longer it must make an effort to complete its case and transfer it to the Indian court.

What sort of notice is required to be given to an Indian tribe in a case involving ICWA?

In tomorrow’s blog post we will discuss more ICWA cases, including the specific type of notice that is required to be provided to an Indian tribe if one of its member-children are involved in a family law case involving adoption or foster care.

In the meantime, if you have any questions about the subject matter we discussed today please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week with a licensed family law attorney.

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