If your child is an Indian child

Why this law exists

Congress enacted the Indian Child Welfare Act in 1978 after finding that Native children were being removed from their families at extraordinary rates and placed in non-Native homes, severing tribal and cultural connections. Washington has its own Indian child welfare act that adds further protections.

What changes when it applies

1. Inquiry and notice. There is a duty to ask whether a child is or may be an Indian child, and to notify the tribe.
2. A higher standard for removal, supported by qualified expert witness testimony.
3. Placement preferences. Placement with relatives, then the child’s tribe, then another Native family, before an unrelated non-Native placement.
4. Tribal participation and jurisdiction. A tribe may intervene, and may ask that the case be transferred to tribal court.

Active efforts is a more demanding standard than the reasonable efforts required in other cases.

Consent to placement is different here

Where ICWA applies, a parent’s consent to foster placement or to termination is governed by federal requirements. Consent must be given in writing and recorded before a judge, who must certify that the terms were explained and understood. A caseworker’s signature is not enough.

Consent to foster care placement may be withdrawn at any time, and the child is returned. Withdrawal after a final adoption decree is far more limited.

If the law was not followed

A parent, an Indian custodian, or the tribe may challenge a placement or removal where ICWA requirements were not met — for example, where the tribe was never notified or where placement preferences were disregarded without a documented effort to follow them.