What Are My Rights Under the Indian Child Welfare Act (ICWA)?
REMOVAL OF INDIAN CHILDREN FROM THEIR HOMES—KNOW YOUR RIGHTS UNDER THE INDIAN CHILD WELFARE ACT
If you are a party to a case in which a third-party is trying to obtain custody of your child, certain Minnesota statutes and both the Minnesota and United States Constitutions provide you with a number of rights as a parent. If, however, your child is a member of or is eligible for membership in a federally recognized Tribe, your family may be afforded even greater protections under the Indian Child Welfare Act (ICWA), the Minnesota Indian Family Preservation Act (MIFPA), as well as other laws. These laws provide rights to an Indian child’s family and their Tribe.
While ICWA does not apply to custody disputes between biological parents, ICWA does apply to most cases in which a third-party is seeking custody or parental rights over a child. Specifically, if your child is a member of or is eligible for membership in a federally recognized Tribe, ICWA will apply in the following types of cases:
Child in Need of Protection or Services (CHIPS) proceedings
Termination of Parental Rights (TPR) proceedings
Adoption proceedings
Third-party custody proceedings
What Rights do Parents have under ICWA?
In general, parents of a non-Indian child has the right to get notice of the court proceedings, request that the children be placed with a certain relative, receive notice when their children are moved to a new foster home, and get their children back if they were removed by police and a hearing is not held within 72 hours (not counting weekends and holidays). The parent of an Indian child has a number of additional rights, including the right to:
Have the Tribe notified of the case
Have a tribal representative present in court
Request a transfer of the case to tribal court (if the other parent agrees)
Have their child placed with a member of the Indian child’s extended family
Have their child placed in a foster home licensed, and approved or specified by the Tribe
Have their child placed in an Indian foster home
Have 20 days between the first hearing and the second hearing to prepare for court
Get a child back from voluntary placement within 24 hours of requesting
Ask the Court to invalidate any orders that violate ICWA
What Rights do Tribes have under ICWA?
The child’s Tribe also has a number of rights, including the right to:
Be notified of the case
Have 20 days between the first hearing and second hearing to prepare for court
Be a party to the case and be present in court
Receive information from child protection
Determine whether a child is a member of or eligible for tribal membership
Request that the case be transferred to Tribal Court
What Rights do Relatives have under ICWA?
Relatives of an Indian child have the right to:
Priority in having the child live with them
Have their home and family evaluated using Indian community standards
Have the same rights as a parent, if they were raising the children when CPS got involved
Participate in court hearings if they are grandparents and the children lived with them in the past two years
What Rights do Indian Children have under ICWA?
ICWA was enacted primarily to protect Indian children and their families. As such, Indian children have a number of rights under ICWA. Specifically, Indian children have the right to:
Be told of their right to a lawyer (if they are 10 and older)
Be present at all court hearings (if 10 and older)
Present evidence
Have an Indian guardian ad litem appointed to the case
Stay with a relative if they cannot be at home
Be advised of all ICWA rights
Ask for permission to live on their own (in certain cases) if they are over age 16
What are the Responsibilities of CPS Workers in ICWA Cases?
In the vast majority of CHIPS cases, the responsible social services agency is required to make reasonable efforts to prevent placement or to eliminate the need for removal and to reunite the child with the child’s family at the earliest possible time. In ICWA cases, however, the social services agency is required to make Active efforts, which means a rigorous and concerted level of effort that is ongoing to continuously involve the Indian child’s tribe. Active efforts also requires social services to use the prevailing social and cultural values, conditions, and way of life of the Tribe to preserve the Indian child’s family and to prevent placement. And, if placement occurs, Active efforts requires social services to return the Indian child to the child’s family at the earliest possible time. In addition to Active efforts, the responsible social services agency is also required to:
Ask questions to know if the children are Indian so that their rights can be protected
Notify each parent’s tribe if there is any chance the children will be removed
Try to find relatives and Indian foster homes
Cooperate with the Tribe
Return Indian children from voluntary placement within 24 hours of the parent’s request
Provide culturally appropriate services
Inform children and parents of their rights under ICWA
Court Proceedings under ICWA
At the first hearing, the court must ask any party or participant if they know or have reason to believe that the child is an Indian child. If the answer is yes, the court case will be treated as an ICWA case—and ICWA will apply—until it is established that ICWA does not apply. The Court may decide to send the case to tribal court if the children live on the reservation or if the child is a ward of the tribal court. Importantly, the court is required to order the children returned home if a qualified expert witness that is familiar with Indian child-raising practices does not testify at Trial. Similarly, the child must be returned home unless the qualified expert witness finds that the children will face serious emotional and physical damage in your care. And, specifically with regard to termination of parental rights matters, while the County is typically required to prove these cases by clear and convincing evidence, in TPR matters involving ICWA, the County must prove its case beyond a reasonable doubt.
If you are a parent of an Indian child who has been removed from your home, it is important to know your rights. ICWA is complicated, so it is extremely important that you retain the services of an ICWA attorney to protect these important rights afforded to you by federal law. Contact the CHIPS attorneys and ICWA attorneys at RAM Law PLLC to schedule your free case evaluation.