The Indian Child Welfare Act: Notice, Placement and Active Efforts
A state court handling a foster placement or a termination of parental rights must ask at the outset whether the child is an Indian child. If the answer is yes, the notice obligations, the burden of proof, the expert testimony requirement and the order of placement all change.
The rule in short
The Indian Child Welfare Act governs state child custody proceedings involving an Indian child. It gives exclusive jurisdiction to the tribe where the child is domiciled on the reservation, allows transfer of other cases to tribal court, requires notice to the parent and the tribe, requires active efforts to prevent the breakup of the family, imposes heightened standards of proof supported by expert testimony, and orders placement preferences a court may leave only for good cause.
The statute was enacted against a record of Indian children removed from their families at rates far above those for other children, most often by state agencies applying standards that treated extended family caregiving and tribal community life as neglect. It responds with jurisdictional rules, procedural requirements and substantive standards that operate on top of ordinary state child welfare law.
The proceedings the statute reaches
Four categories count as child custody proceedings: foster care placement, termination of parental rights, preadoptive placement, and adoptive placement. Each is defined, and the definitions are what matter rather than the label the state uses. A guardianship that removes a child from a parent and does not permit return on demand can be a foster care placement whatever the petition calls it.
Two exclusions are express. A custody award between parents in a divorce is not covered. Nor is a placement based on an act by the child that would be a crime if committed by an adult, which keeps the ordinary delinquency docket outside the statute. Status offenses are a harder question, and courts have divided over placements resting on truancy or incorrigibility.
An Indian child is an unmarried person under eighteen who is either a member of a federally recognized tribe or eligible for membership and the biological child of a member. Eligibility is determined by the tribe, and courts have no room to second-guess it. That is why an inquiry into possible ancestry is required at the start of every case, and why the answer often depends on how a tribe defines its own membership.
Which court hears the case
A tribe has exclusive jurisdiction over a proceeding concerning an Indian child who resides or is domiciled on the reservation, and over a child who is a ward of a tribal court wherever the child sits. Domicile follows the parent, which is how children born off the reservation to reservation-domiciled parents fall within exclusive jurisdiction.
In every other case the state court has jurisdiction but must transfer the proceeding to the tribal court on the petition of a parent, an Indian custodian or the tribe. Transfer is refused only on three grounds: either parent objects, the tribal court declines, or the state court finds good cause not to transfer. Good cause is narrowed by regulation, which forbids reliance on the advanced stage of the proceeding where the party could have sought transfer earlier, on the perceived adequacy of the tribal court, or on the child's contacts with the tribe.
Where the case stays in state court, the tribe may intervene at any point. Tribal court determinations in these proceedings are entitled to full faith and credit in every state, which is a stronger command than the comity that ordinarily governs the recognition of tribal judgments.
Notice must reach the parent or Indian custodian and the tribe by registered or certified mail with return receipt requested, and where the tribe or parent cannot be identified it goes to the Secretary of the Interior. No proceeding may be held until at least ten days after receipt, and a further twenty days must be granted on request. Appellate reversals in these cases turn on defective notice more often than on any other issue.
Active efforts and the standards of proof
Before a foster placement or a termination, the party seeking it must satisfy the court that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and that those efforts were unsuccessful. The regulations describe active efforts as affirmative, active, thorough and timely, and as conducted in partnership with the child, the parents and the tribe. A referral list handed to a parent is not enough.
The evidentiary standards are higher than state law would supply. A foster care placement requires clear and convincing evidence, and a termination requires evidence beyond a reasonable doubt, that continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. Each finding must include the testimony of a qualified expert witness, whose qualification rests on knowledge of the prevailing social and cultural standards of the child's tribe.
| Determination | Standard of proof | Expert testimony | Active efforts finding |
|---|---|---|---|
| Emergency removal | State law standard | Not required | Not required at that stage |
| Foster care placement | Clear and convincing evidence | Required | Required |
| Termination of parental rights | Beyond a reasonable doubt | Required | Required |
| Voluntary consent to adoption | Written consent before a judge | Not required | Not required |
| Departure from placement preferences | Good cause on the record | Not required | Not applicable |
The order of placement and departures from it
For an adoptive placement the preference runs to a member of the child's extended family, then to other members of the child's tribe, then to other Indian families. For foster care and preadoptive placement the order begins with extended family, then a foster home licensed or approved by the tribe, then an Indian foster home licensed by a non-Indian authority, then an institution approved by the tribe or operated by an Indian organization. A tribe may establish a different order by resolution, and the court must follow it.
Departure requires good cause on the record. The regulations limit the permissible grounds and exclude the socioeconomic status of a preferred placement and the ordinary bonding that develops during a placement made in violation of the preferences. The Supreme Court has held that the preferences do not require a placement that no one has come forward to offer, and that a parent who never had custody cannot invoke the continued custody language of the termination provision.
The statute's constitutionality was tested and largely settled in Haaland v. Brackeen, where the Court rejected challenges based on the scope of congressional power, the anticommandeering principle and the nondelegation doctrine, and found the equal protection claims outside the standing of the parties before it. Congressional authority over Indian affairs is broad, and it is the same authority that supports the recognition of a tribe by the United States in the first place.
Points to carry away
- The statute applies to foster care placement, termination of parental rights, preadoptive placement and adoptive placement.
- It does not apply to a custody award in a divorce or to a placement based on an act that would be a crime if committed by an adult.
- An Indian child is an unmarried person under eighteen who is a tribal member, or is eligible for membership and the biological child of a member.
- Notice must go to the parent or Indian custodian and to the tribe, and the proceeding may not go forward for a fixed period after receipt.
- Foster placement requires clear and convincing evidence and termination requires proof beyond a reasonable doubt, each supported by qualified expert testimony.
- Placement preferences favor extended family, then the child's tribe, then other Indian families.
Questions readers ask
Who determines whether a child is eligible for membership?
The tribe does, conclusively. Membership criteria are a matter of tribal law, and a state court has no authority to substitute its own reading of a tribal constitution or to decide that a child who meets the criteria should not count. Where the tribe responds to a notice with a determination, that determination controls. Where the tribe does not respond, the court must proceed on the information available and continue to treat reason to know of Indian ancestry as triggering the statute's protections.
Does the statute apply to a voluntary adoption arranged privately?
Yes, if the child is an Indian child. Voluntary proceedings are covered, and the statute adds its own protections: consent must be given in writing before a judge, who certifies that the terms were explained and understood, and consent given before the child is ten days old is invalid. A parent may withdraw consent to foster placement at any time, and may withdraw consent to adoption at any time before the final decree of adoption is entered.
What happens if the statute was ignored in an earlier proceeding?
The statute supplies its own remedy. A parent, an Indian custodian, or the child's tribe may petition a court of competent jurisdiction to invalidate a foster care placement or a termination of parental rights on the ground that it violated the jurisdiction, notice, consent or evidentiary provisions. Where an adoption decree is vacated or the adoptive parents no longer wish to raise the child, the statute also gives the biological parent a right to petition for return of custody, subject to the child's best interests.
Sources
- Cornell Legal Information Institute — 25 U.S.C. 1901, Congressional FindingsThe findings and policy that frame the statute's construction.
- Cornell Legal Information Institute — 25 U.S.C. 1911, Indian Tribe Jurisdiction Over Child Custody ProceedingsExclusive tribal jurisdiction, transfer, the right to intervene, and full faith and credit.
- Cornell Legal Information Institute — 25 U.S.C. 1912, Pending Court ProceedingsNotice, appointed counsel, active efforts, and the two evidentiary standards.
- Cornell Legal Information Institute — 25 U.S.C. 1915, Placement of Indian ChildrenThe adoptive and foster placement preferences and the tribe's power to alter their order.
- eCFR — 25 CFR Part 23, Indian Child Welfare Act ProceedingsThe binding regulations on inquiry, notice, active efforts, expert testimony and good cause.
- eCFR — 25 CFR Part 13, Tribal Reassumption of Jurisdiction Over Child Custody ProceedingsThe process by which a tribe reassumes jurisdiction transferred away under earlier legislation.
- Bureau of Indian Affairs — Frequently Asked QuestionsAgency material on tribal enrollment inquiries and the services that support child welfare cases.
Justice Partners Journal is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
