Indian Child Welfare Act Proceedings - A Basic Primer on How to Proceed

Donna Goldsmith

Donna Goldsmith, JD




The Indian Child Welfare Act of 1978 is a unique federal law that governs child custody proceedings that involve an Indian child, as the Act defines those two terms. It reorients the focus of what constitutes the “best interests” of an Indian child, finding that an Indian child is best served by protecting “the rights of the…child as an Indian.” To accomplish this goal, the ICWA establishes a scheme of substantive and procedural requirements that govern throughout the entirety of state child protection proceedings, including certain types of juvenile justice cases. It supersedes other state law that does not provide at least the same level of scrutiny and protection for the child and parents/Indian custodian of the child, and requires state courts to apply whichever standard of protection is higher.

State judges must comply with the ICWA, as the possibility of reversal on appeal for failure to comply is great, and long delays resulting from the appeals process are not in the best interests of the child or the family. Following is a brief summary of several of the most important actions state courts must take at the very outset of any proceeding to ensure basic compliance with the ICWA throughout the case.1

Does the ICWA Apply?

The most important step that every judge must take is to inquire at the beginning of every hearing whether there is any reason to believe that the child before the court is an Indian child and, if so, what tribe is the child’s tribe. Because the parent(s) or Indian custodian may be absent from initial hearings, and physical characteristics often belie tribal connections, the court must ask everyone attending the hearing – parties, attorneys, family, and family friends - whether there is any reason to believe that the child is or may be Indian. The court must also order the state agency to make active efforts to find the correct answers to these two questions, and must confirm that the agency made active efforts to identify and work with all tribes in which the child may be a member to verify the child’s membership status. At every subsequent hearing, the court must continue to question every attendee if there is any reason to know that the child is an Indian child - until the court is satisfied that it knows the child’s tribal status.

As soon as there is information indicating that the child may be an Indian child, and there is any information regarding which is the child’s tribe(s), the court must send notice to the tribe(s) immediately, by registered mail, return receipt requested, that there is a child custody proceeding involving the welfare of the child, and advising the tribe of its right to intervene as a party. Notice must include genogram and other information that will assist the tribe in determining the child’s identify and membership status. The tribe, alone, has the right to determine membership – a state court may not substitute its own decision for that of the tribe(s).

If either parent or the Indian custodian is absent from initial hearings, the court must send notice to them, as well, advising them of their rights under the ICWA. If either the parent(s) or Indian custodian is indigent, the court must appoint counsel immediately.

When Must State Court Dismiss the Case or Transfer Jurisdiction to the Tribal Court?

State courts must give full faith and credit to the public acts and judicial proceedings of any Indian tribe that relate to child custody proceedings to the same extent that they do so for any other jurisdictional entity. At the very outset of the case, then, judges must determine: 1) whether the child’s tribe has previously asserted its jurisdiction over the child in tribal protection proceedings/made the child a ward of the tribal court; and 2) whether the child resides or is domiciled on an Indian reservation where the tribe has exclusive jurisdiction over its members on that reservation, precluding the exercise of state jurisdiction. If there is reason to believe that the answer to either question is affirmative, the state judge should immediately contact the tribal judge, as the state court lacks jurisdiction under these two scenarios and must defer to tribal authority. The state judge must dismiss the case if the court determines that it lacks jurisdiction, must notify the tribal court that it plans to do so, and must forward any relevant information/documents to the tribal court.

If at any time during the entirety of the state proceedings the state court receives a request for transfer of jurisdiction to the tribal court from the parent, Indian custodian, or child’s tribe, the ICWA requires state judges to transfer the case absent: 1) objection by either parent, which serves as an absolute veto; 2) declination by the tribal court (where the parent has made the request for transfer of jurisdiction); or 3) good cause2 not to transfer. Upon receiving a request for transfer, the state court must first notify the child’s tribal court of the request, and give that court 20 days to accept or decline the transfer request. If the tribal court accepts, the state judge should forward to the tribal court all court records as quickly as possible, and should order the state agency to do so with its records, as well. Failing to provide a tribal court with adequate and complete information can hamstring the tribal court and impact decisions regarding the best interests of the child.

Removal of Custody and Placement Decisions

Before a state judge can order removal of an Indian child from the legal or physical custody of either parent or the Indian custodian, the judge must find by clear and convincing evidence, including testimony of a qualified expert witness, that: 1) active efforts were made to avoid removal by providing remedial and rehabilitative services designed to prevent removal of the child; 2) there is a causal relationship between the conditions in the home and the potential risk of harm to the child; 3) there is a nexus 4) the agency’s efforts were unsuccessful; and 5) continued custody by the parent(s) or Indian custodian will likely result in serious harm to the child. The requirement to engage in active efforts begins from the moment the possibility arises that the agency could remove the child from her home.

State courts must also adhere to the ICWA’s placement preferences, absent good cause to deviate from them, supporting by clear and convincing evidence that good cause exists. These placement preferences are the most important substantive provisions found within the Act. Note that the child’s tribe may, by issuing a resolution, alter the placement preferences and notify the state court of that decision.

In sum, prompt and comprehensive implementation of both the procedural and substantive provisions of the ICWA will, ultimately, best serve the best interests of the Indian child.

Editor’s Note: Link to Ms. Goldsmith’s complete article “Indian Child Welfare Act Proceedings – Basic Primer on How to Proceed.”


1 For a more detailed discussion of implementation of the ICWA, please refer to Donna J. Goldsmith, “ Indian Child Welfare Act Proceedings – A Basic Primer on How to Proceed,” and to Judge Len Edwards, "'Active Efforts' and 'Reasonable Efforts': Do They Mean the Same Thing?" The Bench, Spring, 2015, at pp. 6 and 34. See also the ICWA, and the Department of the Interior, Bureau of Indian Affairs, Guidelines for State Courts and Agencies in Indian Child Welfare Proceedings, 80 Fed. Reg. 10146 (February 25, 2015).

2 Courts may not consider whether a case is at an advanced stage or whether transfer might result in a change in the child’s placement. See Department of the Interior, Bureau of Indian Affairs, Guidelines for State Courts and Agencies in Indian Child Welfare Proceedings, 80 Fed. Reg. 10146, 10156 § C.3(c) (February 25, 2015). between the services offered and the behaviors that put the child at risk of harm;

About the Author
Donna J. Goldsmith is a former tribal judge and retired attorney whose 29-year law practice focused on the field of federal Indian law and the development of collaborative and cooperative tribal-state judicial relationships. She represented Indian children, parents, extended family members, tribes, and the State of Alaska in child protection proceedings in both state and tribal courts nationwide, consulting on development of tribal child protection courts in Canada, as well.  Ms. Goldsmith served for many years on the NCJFCJ Permanency Planning Department, was Chairwoman of the NCJFCJ Tribal Courts/ICWA Liaison Committee, Co-Chair and Chair of the Tribal Courts and ICWA Subcommittees, and worked extensively with the Council to develop written judicial training materials, including ICWA Checklists. She also chaired the Federal Bar Association Indian Law Section, initiated and developed the Federal Bar Association’s Tribal-State-Federal Judicial Forum, and served as a Special Assistant Attorney General for the State of Alaska, facilitating the government to government relationships between the tribes in Alaska and the State of Alaska. 

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