A Resource for Judges Who Handle ICWA Cases

A new resource from the National Council of Juvenile and Family Court Judges (NCJFCJ) aims to help judges uphold the rights of Native American children in juvenile court.

The “Indian Child Welfare Act Judicial Benchbook” is designed to assist judges implement the Indian Child Welfare Act (ICWA), a series of guidelines on the cases of child abuse and neglect and adoption cases involving Native American children.

The publication offers checklists to help judges navigate ICWA during the legal proceedings in juvenile court, including preliminary protective, disposition and permanency planning hearings.

Across the nation, Native American children are overrepresented in foster care. A 2016 NCJFCJ report found that they were placed in foster care at a rate of 2.4 times their rate in the general population.

ICWA was passed in Congress in 1978 “to protect the best interest of Indian children and to promote the stability and security of Indian Tribes and families.”

The NCJFCJ benchbook provides guidelines to judicial officers to ensure that cases involving American Indian or Alaska Native children are living up to the standards spelled out in ICWA. The resource provides updated checklists to help judges and other judicial officers be consistent with ICWA, best practices and recently updated Bureau of Indian Affairs regulations.

To be eligible for ICWA, a child must be a member of a federally recognized Indian tribe or eligible for a membership in a federally recognized Indian tribe and the biological child of a member/citizen of a federally recognized Indian tribe.

Tribes have the ability to govern their members independently of the state or federal government in many areas of law. Determining tribal membership is a matter for families and tribes, not state courts. To make a judicial designation of the Native American child’s tribe, the state court may rely on documents or testimony indicating membership.

According to the NCJFCJ resource, a child can be a member of more than one tribe: deference should be given to the tribe in which the child is already a member, unless otherwise agreed upon by the tribes. It also provides an opportunity for the tribes to weigh in about which should be designated.

This only applies when the court knows or has reason to know the child is an “Indian child,” or during “custody proceedings, which include foster care placements, termination of parental rights, pre-adoptive placements, adoptive placements and status offenses, among others.

Checklists in the NCJFCJ benchbook encourage judges to ask key questions during the legal proceedings. For example, during disposition hearings, the benchbook says that judges should determine whether there is a need for placement or not with queries like these:

  • “Does the agency’s proposed case plan address the needs of the child and the parent(s) or Indian custodian?”
  • “Is the child placed within the placement preferences [law] or under the tribe’s preferences?”
  • “Is the continued removal of the child necessary to prevent serious emotional or physical damage to the child?”

There are some circumstances when ICWA rules do not apply to Native American children, such as when one parent obtains custody of the child after a divorce. Another area where ICWA does not apply is a voluntary placement, which does not prohibit the child’s parent from regaining custody upon demand.

You can check out NCJFCJ’s ICWA resource here.

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