THE INDIAN CHILD WELFARE ACT - 25 U.S. Code § 1901, et. seq.
In any child custody proceeding, it is important to determine whether The Indian Child Welfare Act (ICWA) will be triggered. If the minor child to be adopted is an "Indian child" under the ICWA, the act is triggered and notice will need to be served upon the tribe allowing the tribe the opportunity to intervene in the proceeding.
Below are definitions of "child custody proceeding" and "Indian child" under the Act.
25 U.S. Code § 1903
(1) “child custody proceeding” shall mean and include—
(i) “foster care placement” which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;
(ii) “termination of parental rights” which shall mean any action resulting in the termination of the parent-child relationship;
(iii) “preadoptive placement” which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and
(iv) “adoptive placement” which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.
Such term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents.
25 U.S. Code § 1903
(4) “Indian child” means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe;
More information on the Indian Child Wefare Act can be found at:
www.indianaffairs.gov
The American Bar Association’s ABA Journal wrote an in depth article looking at families affected by the Indian Child Welfare Act. Click the link below to view the article.
ABA Journal
October 1, 2016
“Lawsuits dispute whether the Indian Child Welfare Act is in the best interest of children” by: Lorelei Laird.