ICWA establishes procedures that must be followed and rights that must be afforded by state courts when determining temporary (foster care) or permanent (adoption) placement of Indian children. The following is a brief summary of these procedures and rights, all of which are discussed later in this chapter.
- If the Indian child is domiciled on an Indian reservation or has been made a ward of the tribal court, the tribal court has exclusive jurisdiction over the child in all custody matters. State courts may not adjudicate these cases.
- If the child is domiciled off the reservation, the state and the tribal court has concurrent (shared) jurisdiction. Should a custody proceeding be initiated in state court, the court must notify the child’s parents and tribe, and they each have a right to intervene in the proceedings. If either the tribe or a parent requests it, the state court must transfer the case to tribal court unless a parent objects or good cause exists to deny the request.
- If the case remains in state court, the court may not terminate parental rights without proof “beyond a reasonable doubt” or (place the child in foster care without “clear and convincing evidence”) that continued custody by the child’s family “is likely to result in serious emotional or physical damage to the child.
- If the child’s parents are indigent, they have a right to a court-appointed attorney, and separate counsel must be appointed for the child when the best interests of the child require it.
- Before a state court may place an Indian child in a non-Indian adopted home, the court must give sequential placement preference to, first, the child’s extended family, second, to other members of the child’s tribe, and third, to other Indian families, unless good cause exists to ignore this placement hierarchy. A similar hierarchy is imposed in foster care placements.
- If a state court’s placement of an Indian child violates ICWA, that placement is subject to invalidation upon petition of a parent or custodian of the child or by the child’s tribe.
- Tribal court custody decisions are entitled to the same “full faith and credit” as state court custody decisions, meaning that they normally must be respected and enforced by other courts.
- The state must keep accurate records of all Indian children placements to which ICWA applies and make those records available to the federal government and the tribe. In addition, when the adopted Indian child becomes 18 years old, the state must provide the child upon his or her request with the names and tribal affiliation(s) of the child’s biological parents.
As these procedures and rights reflect, ICWA creates a dual jurisdictional system that favors the tribe. When the child lives on the reservation, state courts have no jurisdiction to determine the child’s custody. When the child lives off the reservation, tribes and states have concurrent jurisdiction, but jurisdiction presumptively lies in the tribe because the state court must transfer the case to tribal court upon request of the tribe or one of the child’s parents, except in limited circumstances. ICWA, in other words, “establishes a preference for tribal court jurisdiction.” Moreover, even when a case remains in state court (as it can in some situations), ICWA allows tribes to intervene in the proceeding, reflecting Congress’s conclusion that state courts are more likely to make proper placement decisions if tribes have an opportunity to inform the court as to the tribe’s social and cultural values.
Thus, state courts are placed on notice by ICWA, as the Montana Supreme Court stated in 1998, “that they are, in fact, a significant part of the problem regarding the high number of improper Indian placements, and that “tribal courts are uniquely and inherently more qualified than state courts to determine custody in the best interests of an Indian child.” ICWA was enacted, the South Dakota Supreme Court observed in 2005, to assist “with our responsibility to promote and protect the unique Indian cultures of our state for future generations.”