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Frequently Asked ICWA Questions

What is a transfer of jurisdiction under the Indian Child Welfare Act?
A transfer is the change of jurisdiction of certain ICWA proceedings from state court to tribal court under Section 1911(b) of the Indian Child Welfare Act. Transfer to the tribal court means that the tribal court makes decisions about the child’s status and placement, and not the state court.  Transfer is distinct from intervention and does not automatically occur when a tribe intervenes.
What proceedings are subject to transfer from state court to tribal court?
Section 1911 of the Indian Child Welfare Act states "In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe."

CFSD policy states: "An ICWA Transfer of Jurisdiction by an Indian tribe means specifically that the respective tribal court assumes all legal authority of the CPS case, as well as the accountability and responsibility for the direct social work case management and record keeping."
In what types of proceedings is legal notice explicitly required?
At a minimum the Indian Child Welfare Act requires notice in any involuntary proceeding in a State court where the court knows or has reason to know that an Indian child is involved and the foster care placement of the child, or the termination of parental rights to the child is sought.
Who must be notified?
At a minimum, at the commencement of the action the parents and Indian custodian, if any, of an Indian child, and the Indian child's tribe must be given notice. Notice must be given to each tribe in which the child is a member or is eligible for membership.
Why is notice required under the Act?
Due process requires that before a persons rights can be affected in a court proceeding, they be given notice and an opportunity to be heard. Parents have a fundamental liberty interest, in the care, custody, and management of their children. An Indian custodian has the right to notice because she stands in the shoes of the parent. Indian tribes have an interest in the child which is distinct from, but on a parity with the interest of the parents.
Where do I find a Qualified Expert Witness?
The biographies of current Qualified Expert Witnesses are listed in the Indian Child Welfare Act Qualified Expert Witness Handbook under individual Montana tribes. Some individuals are listed in more then one heading if they have affiliation with more then one tribe. Efforts are made to keep the information current, although some of the information may not be. Training for Qualified Expert Witnesses is held once a year with new participant biographies added to the list. A brief description and contact information on Qualified Expert Witnesses can be found on the web page www.dphhs.mt.gov/cfsd/icwa. If you need assistance in identifying or contacting an appropriate Qualified Expert Witness, please contact Child & Family Services at 841-2400.
Does ICWA apply to tribes that are not federally recognized?
No, ICWA applies only to those United States tribes that are recognized by the Federal government. However many of the facets of ICWA, such as placement with relatives, diligent search for relative placements or Indian foster home placements, active efforts, and recognition of the importance of a child’s tribe and culture, represent good social work practice and should be considered when working with Indian families. In Montana the Little Shell Tribe is recognized by the state and subject to all aspects of ICWA. 
What is intervention?
Intervention is a procedure that allows a third person not part of a suit, but who claims to have a legal interest in the suit, the opportunity to participate in a legal proceeding to protect the claimed interest.
What is intervention under ICWA?
The Indian Child Welfare Act expressly grants an Indian custodian and an Indian child’s tribe the legal right to intervene in a foster care placement or a termination of parental rights proceeding. This right is mandatory and can be exercised at any point in such proceeding.
Why is intervention important?
Legislative history shows that state child welfare systems were ignorant of Indian culture and childrearing practices and, therefore, were more likely than not to make ill-informed decisions regarding termination, removal and placement of Indian children. Intervention is a procedure that allows Indian custodians, Indian parents and tribes to participate in foster care or termination proceedings to educate state courts of tribal cultural and social standards, thereby, allowing a court to make a more informed decision and adhere to the spirit and intent of the act. Tribal participation also ensures that state courts not only protect the best interest of the child as defined by ICWA but also protect the continued existence and integrity of Indian tribes. With regard to intervention rights of Indian custodians, it is necessary because foster care placements and/or termination of parental rights proceedings may forever alter the custodial rights of the Indian custodian and Congress believed it important that Indian custodians be treated similarly as parents in child custody proceedings.
Under what circumstances can a state court take custody of an Indian child who is under the jurisdiction of a tribal court?
Generally, tribes retain exclusive jurisdiction over child custody matters when the Indian child resides or is domiciled on an Indian reservation. There may be times, however, when an Indian child is temporarily located off the reservation and in danger of physical damage or harm. Because the Tribe may not have immediate physical contact with the child a state may act to protect the child.
When does a state emergency removal or placement involving a resident or domiciled reservation Indian child terminate?
The emergency removal terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child or as soon as the tribe exercises jurisdiction over the case, whichever is earlier. Emergency removals or placements are to be as short as possible. Section 1922 of the Indian Child Welfare Act mandates the state authority, official or agency to initiate a child custody proceeding subject to the provisions of the ICWA, transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate.
What qualifications must a Qualified Expert Witness possess?
A qualified expert witness must possess expertise beyond the normal social worker. Most courts have required all categories of expert witnesses to have knowledge of and experience with Indian culture "to provide the Court with knowledge of the social and cultural aspects of Indian life to diminish the risk of any cultural bias." The term "expert" was intended to include those individuals capable of rendering an opinion on whether an Indian child is suffering emotional or physical harm because of the actions or inactions of the parents or caretaker. Indian family structure and child rearing customs or practices differ and the expert must be qualified with this knowledge.
What rights do Indian children have under the Indian Child Welfare Act?
The Indian Child Welfare Act protects the familial and tribal interests of any child who is under eighteen and is a tribal member, or is eligible for membership in a tribe and has a biological parent who is a tribal member. One way in which Congress has attempted to protect Indian children under the Act is by recognizing the authority of tribal courts to handle any child custody cases involving their membership or those eligible for membership.
Under what circumstances can a state court take custody of an Indian child who is under the jurisdiction of a tribal court?
Generally, tribes retain exclusive jurisdiction over child custody matters when the Indian child resides or is domiciled on an Indian reservation. There may be times, however, when an Indian child is temporarily located off the reservation and in danger of physical damage or harm. Because the Tribe may not have immediate physical contact with the child a state may act to protect the child.
When does a state emergency removal or placement involving a resident or domiciled reservation Indian child terminate?
The emergency removal terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child or as soon as the tribe exercises jurisdiction over the case, whichever is earlier. Emergency removals or placements are to be as short as possible. Section 1922 of the Indian Child Welfare Act mandates the state authority, official or agency to initiate a child custody proceeding subject to the provisions of the ICWA, transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate.
What is a transfer of jurisdiction under the Indian Child Welfare Act?
A transfer is the change of jurisdiction of certain ICWA proceedings from state court to tribal court under Section 1911(b) of the Indian Child Welfare Act. Transfer to the tribal court means that the tribal court makes decisions about the child’s status and placement, and not the state court.  Transfer is distinct from intervention and does not automatically occur when a tribe intervenes.
What proceedings are subject to transfer from state court to tribal court?
Section 1911 of the Indian Child Welfare Act states "In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe."

CFSD policy states: "An ICWA Transfer of Jurisdiction by an Indian tribe means specifically that the respective tribal court assumes all legal authority of the CPS case, as well as the accountability and responsibility for the direct social work case management and record keeping."
What is a tribal court?
"Tribal court" means a court with jurisdiction over child custody proceedings and which is either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian tribe, or any other administrative body of a tribe which is vested with authority over child custody proceedings.
What role does a tribal court play in ICWA child proceedings?
A tribal court can accept a transfer of jurisdiction over a child custody proceeding commenced in a state court upon the motion of a parent or Indian custodian or the Indian child’s tribe under the Indian Child Welfare Act. Tribal courts can also make findings in accepting a transfer of jurisdiction, such as finding the child to be a member of, or eligible for membership in the tribe, and may assist the tribe in getting a transfer of jurisdiction.

For Indian children who reside or are domiciled on a reservation, tribal courts exercise exclusive jurisdiction over child custody proceedings. If an Indian child has been declared a ward of the tribal court in previous proceedings, the tribal court retains exclusive jurisdiction over child custody proceedings involving the child even if that child no longer resides on that reservation. If it is determined that the child is a ward of a tribal court, the case must be transferred to the tribal court.
What types of voluntary proceedings are covered by the Indian Child Welfare Act?
ICWA covers three types of voluntary proceedings: foster care placements, termination of parental rights proceedings, and adoption proceedings. The voluntary proceeding provisions of ICWA primarily apply to the giving of consent by a parent or Indian custodian in a voluntary foster care placement, termination of parental rights, or adoptive placement proceeding. Voluntary foster care placement proceedings include giving temporary custody to another person or to a tribal, state or private social services agency, guardianships, and any other temporary custody arrangements. Adoptive proceedings include any action resulting in a final decree of adoption. There is a difference in use of the term foster care placement" under ICWA as it applies to voluntary proceedings versus involuntary proceedings. Foster care placement in an involuntary court action is defined by ICWA as any temporary placement of an Indian child where the parent or Indian custodian cannot have the child returned upon demand. The voluntary foster placement provision of ICWA states that a parent or Indian custodian has a right to withdraw consent to a foster care placement at any time, at which time the child shall be returned to the parent or Indian custodian.
How does ICWA define the extended Indian family"?
The Indian Child Welfare Act directs that extended family member be defined by reference to the law or custom of the tribe, so an examination of the tribe’s code of laws or other resolutions passed by the tribal governing body is in order to assure that the tribe’s definition of the term is utilized. In determining customary practices, inquiry should be made with the Tribal Child Welfare office or elders associated with the tribe. Relevant literature produced by tribal members or others associated with the tribe may be another source of information. In the absence of a governing tribal definition, the federal laws define the term as an adult person who is a grandparent, sibling, aunt or uncle, niece or nephew, brother or sister-in-law, first or second cousin, or stepparent.
Is the extended Indian family relationship the same for all tribes?
No. ICWA explicitly recognizes under the definition of extended family member that each tribe’s customs and laws must be adhered to in determining extended family members. In some tribes the extended family relationship may extend even to tribal members not related by blood or law to the child because of the societal obligations certain tribal members owe to children within the community.
What is an adoptive placement under ICWA?
An adoptive placement under the Indian Child Welfare Act is the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption. An adoptive placement is one of the categories of child custody proceedings to which the ICWA applies, along with foster care placements, termination of parental rights, and pre-adoptive placements. The Act applies to extended-family adoptive placements as well as step-parent adoptions.
Does ICWA apply to private agency adoptive proceedings?
Yes. In enacting the Indian Child Welfare Act, Congress noted the particularly harmful consequences of the unwarranted removal of Indian children from their families by nontribal public and private agencies, and their alarmingly high placements in non-Indian foster and adoptive homes and institutions. State court child custody proceedings involving an adoptive placement of an Indian child, whether privately arranged or conducted by a state agency, are subject to the Indian Child Welfare Act.
Does the Indian Child Welfare Act afford access to adoption records for Indian youth?
Two provisions of the Indian Child Welfare Act provide a means for an adopted Indian, eighteen or older, to obtain information relating to his or her adoption. Section 1917 of the Act provides for release, upon application, of certain information by the court that entered the final decree. Section 1951(b) of the Act provides for a similar release of information by the Secretary of the Interior. The Indian Child Welfare Act gives an adopted Indian child, who is eighteen or older, the right to access his or her adoption records to identify the biological parents' tribal affiliation so as to establish tribal membership in the tribe of a parent and to access "such other information as may be necessary to protect any rights flowing from the individual's tribal relationship." 25 U.S.C. 1917
Does the Indian Child Welfare Act give a tribe any rights to the Indian adoptee's biological parents' information?
Yes. In accordance with 1951(b) an Indian tribe can request the Secretary of the Interior to disclose necessary information in its central registry to establish an adopted Indian child's enrollment or to determine "any rights or benefits associated with that membership."
How does recruitment of Indian families play into placement?
Recruitment of Indian foster and adoptive families is perhaps the most critical component necessary to implement the ICWA. If foster and adoptive families meeting ICWA’s placement preferences are not available, the Indian Child Welfare Act’s intent to maintain Indian children within their tribal culture and community cannot be fulfilled.
How are non-Indians in general and non-Indian family members involved in placement?
The Indian Child Welfare Act treats non-Indian parents and extended family members the same as Indian family members, with regard to placement preferences, although a family member’s ability to foster or maintain an Indian child’s connection to his or her tribe or culture is an appropriate factor to consider in determining placement of the child.
How do tribal values apply to placement?
One of the primary purposes of the ICWA is to foster or maintain the connections between an Indian child and his or her community, tribe and culture. This purpose is achieved by placing an Indian child who requires placement within his or her tribal community. Tribal values apply to placement since placement within the tribe or tribal community by definition fulfills the purposes of the ICWA. Legislative history of the ICWA documented the failure of state social services agencies and state courts to view tribal values and conditions as legitimate, and concluded that many removals of Indian children and placement of those children in non-Indian homes occurred for inappropriate reasons.
How do socio-economic conditions factor into placement?
The Indian Child Welfare Act states that the standards to be applied in meeting the ICWA placement preference requirements shall be the prevailing cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties. Under ICWA case law, a state agency cannot refuse to approve placement of an Indian child within the tribal community because of preconceived notions about whether conditions within the tribal community are adequate. If the tribal social services agency approves a specific placement, that should end the inquiry about the physical adequacy of the home.
How does tribal licensing approval apply to placement?
The foster care placement preferences of the Indian Child Welfare Act grant a preference for foster homes licensed, approved or specified by the Indian child's tribe. If the Indian child's tribe has licensed, approved or specified a foster home for an Indian child, the Indian child must be placed in that home unless the state court determines that good cause exists not to do so.

Page last updated: 07/24/2013