The Indian Child Welfare Act: Preferred Placement and the Best Interests of the Child

Judge PortleyJudge Maurice Portley, Arizona Court of Appeals

Summary: Considering that ICWA represents the congressional determination of what is in the best interests of an Indian child, CPS, the CASA volunteer and the court should follow the placement preferences in the absence of proving good cause to deviate.


The child is cute; everyone agrees. He has glowing dark, yet sad, eyes. When he smiles, he lights up the room; his smile lasts longer than a high desert sunset. He is a child victim.

Child Protective Services, and his CASA volunteer, think they have a great foster family. They are ready to place him and, if his family cannot be reunited, to have the family adopt him. The foster parents are good people who would like to adopt, and no one doubts their sincerity or ability to provide a home for the child. The only problem that CPS is wrestling with is the fact that the child is an Indian child, who is duly registered with an Indian tribe. Can CPS place the child with the foster parents and argue that the placement is in the child’s best interest? Can CPS ignore the placement preferences in the Indian Child Welfare Act (ICWA)? Can the judge ratify the CPS decision?

Congress enacted the Indian Child Welfare Act[1] in 1978, at the urging of Rep. Mo Udall, because of concerns that Indian families and tribes were threatened by alarmingly high—and disproportionate—rates of removal of Indian children by non-tribal entities, including state courts.[2] Congress wanted “to protect and preserve the integrity of America’s Indian tribes, while also protecting the interest of Indian children.”[3] In fact, Congress specifically stated that the purpose of the ICWA was:

“…to protect the best interests of Indian children and to promote stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.”[4]

Given the purpose of the ICWA, CPS has to follow the statutory placement preferences in ICWA section 1915. If there were any question whether the placement priorities had to be followed, the US Supreme Court answered the question in Mississippi Band of Choctaw Indians v. Holyfield, when it stated that the statutory placement preferences are “the most important substantive requirement imposed on state courts.”[5] In fact, the primary purpose of section 1915 is to prohibit state agencies and courts from imposing value judgments on proposed placements based on prevailing social and cultural standards in the non-Indian community.[6]

A juvenile court found that the Indian child had not lived on the reservation, that ICWA did not apply to the dependency proceeding and that it was appropriate to keep the child in a non-Indian home.[7] The appellate court reversed the order and stated that the judge must, in the absence of good cause to the contrary, follow the provisions of ICWA.[8] The court then listed the statutory placement preferences: a member of the child’s extended family; a foster home licensed, approved or specified by the child’s tribe; an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or an institution approved by the tribe or operated by an Indian organization which has a program to meet the child’s needs.[9] Finally, the court stated:

“It is clear that Congress has made a very strong policy choice that Indian children, including those who have a non-Indian parent, belong in an Indian home. Assuming that the remoteness of the Indian home and “culture shock” may be a valid consideration in deciding whether there is good cause not to follow the preferences expressed in [ICWA] in a given case, on the record before the trial court in this matter, we find that it was an abuse of discretion not to apply the preferences.”[10]

Considering that ICWA represents the congressional determination of what is in the best interests of an Indian child, CPS, the CASA volunteer and the court should follow the placement preferences in the absence of proving good cause to deviate from the preferences.[11]


Editor’s Note: Judge Portley is a former trustee of the National Council of Juvenile and Family Court Judges and presiding juvenile court judge for Maricopa County, AZ.


[1]  25 U.S.C. section 1901 et seq.

[2]  Valerie M. v. Ariz. Dept. of Econ. Sec., 219 Ariz. 331, 334, 198 P.3d 1203, 1206 (2009); see generally, Donna Goldsmith, In the Best Interests of an Indian Child: The Indian Child Welfare Act, 53 Juvenile and Family Court Journal, 9 (Fall 2002).  

[3] Steven H. v. Ariz. Dept. of Econ. Sec., 218 Ariz. 566, 570, 190 P.3d 180, 184 (2008)

[4]  Id. at 1902.

[5] 490 U.S. 30, 36 (1989)

[6]  B.J. Jones, The Indian Child Welfare Act Handbook: A Legal Guide to the Custody and Adoption of Native American Children, 85 (1995).

In Re Appeal in Coconino County Juv. Action No. J-10175, 153  Ariz. 346, 348, 736 P.2d 829, 831 (App. 1987).

[8]  Id. at 348-98, 736 P.2d at 831-32.

[9] Id. at 349, 736 P.2d at 832.

[10] Id. at 349-50, 736 P.2d at 832-33.

[11] The Bureau of Indian Affairs Guidelines provides several illustrations that may constitute good cause to deviate from the ICWA placement preferences including the request of the biological parents or child, when the child is of sufficient age; the extraordinary physical or emotional needs of the child as established by a qualified expert witness; or the unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria. Dept. of Interior, Bureau of Indian Affairs Guidelines for State courts; Indian Child Custody Proceedings, 44 Fed. Reg. No 228, 67584, F3, at 67594.

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