Protecting Native American Culture, Children, and Your Practice

By Johnathan R. Baldauf

The Indian Child Welfare Act (“ICWA”) is a federal law enacted in 1978 that sets standards designed to “protect[] the best interests of Indian children and to promote the stability of Indian tribes and families.”[i] The ICWA generally applies to Indian children who may be removed from the custody of their parents. The law protects children who are eligible for membership in federally-recognized tribes and ensure that tribes have priority in placement and is “addressed to the concern that ‘an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.’”[ii] The heightened requirements of the ICWA are designed to maintain the culture of the tribe.

Because the ICWA does not apply to custody disputes between parents or family members, many family law practitioners are not familiar with the law. However, any practitioner dealing with adoption, guardianships, or the termination of parental rights should ensure that they have reviewed their case to determine if the ICWA might apply. While the ICWA only applies to involuntary proceedings, ensuring its requirements are met in voluntary proceedings can make a clear record and can address the concerns the ICWA was designed to address.  This article will help practitioners understand the ICWA, when it applies and provide some practical advice on how to navigate it.

Application of ICWA

The ICWA applies when 1) a child who is a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of a tribe is 2) involved in a child custody proceeding, as defined by 25 U.S.C. § 1903(1). Tribes have the final say in determining who is eligible for membership. The statute limits “child custody proceedings” to foster care placement, termination of parental rights, pre-adoptive placement (temporary placement in a foster home), and adoptive placement. The statute specifically excludes non-status juvenile offenses and divorce proceedings.

Requirements When ICWA Applies

When the ICWA applies, “active efforts” must be taken to prevent the breakup of the Indian family. These active efforts include: notice must be given to the parents and tribe (or tribes), the tribe must be allowed to intervene, consideration of the social and cultural standards of the parents and tribe must be taken into consideration when placing a child, and additional findings are necessary if rights are to be terminated.

The court must be satisfied that active efforts have been made to prevent the breakup of the Indian family. Active efforts are affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with his or her family. The Bureau of Indian Affairs provides several examples, including conducting a comprehensive assessment of the circumstances of the Indian child’s family, with a focus on safe reunification as the most desirable goal; taking steps to keep siblings together where possible; and identifying community resources.[iii]  Active efforts must be documented in detail and, to the extent possible, should involve and use the available resources of the extended family, the child’s Indian tribe, Indian social service agencies and individual Indian care givers.[iv] “The term active efforts, by definition, implies heightened responsibility compared to passive efforts.”[v]  “[A]s opposed to passive efforts such as simply developing a plan for the parent to follow, active efforts require that the state actually help the parent develop the skills required to keep custody of the children.”[vi]  Referrals are not enough; the petitioners must actively engage the family.

Notice and The Opportunity to Intervene Are Required.

Notice must be given to the child’s tribe, parent, and (if applicable) the child’s custodian. Generally, notice is given to the tribe itself, although if the identity or location of the tribe cannot be determined, notice can be given to the Secretary of the Interior, who is then required to give notice to the tribe. No hearings can be held until at least 10 days after the receipt of notice.

ICWA allows the child’s tribe to intervene “at any point in the proceeding.”[vii]

Jurisdiction is Concurrent.

In Idaho, the State has concurrent jurisdiction with the Tribes over parental termination proceedings. While ICWA includes language giving a Tribe “jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe. . .” an exception exists to allow states to maintain jurisdiction “where such jurisdiction is otherwise vested in the State by existing Federal Law.”[viii]  The passage in 1953 of federal Public Law 280 allowed for states to “assume jurisdiction over reservation Indians” and opened the door for the state to exert jurisdiction over those issues.[ix]  Idaho stepped through that door in 1963 with the passage of Idaho Code § 67-5101, directly assuming and accepting jurisdiction for dependent, neglected, and abused children.[x]

Preference is Required.

For adoptive placement, ICWA requires preference to be given, in the absence of good cause otherwise, to placement with a member of the child’s extended family, other members of the child’s tribe, or other Indian families. For pre-adoptive or foster care placement, preference is given to members of a child’s extended family, foster homes licensed or approved by the tribe, Indian foster homes licensed or authorized by a non-Indian licensing authority; or an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs. If the child’s tribe establishes a different order of preference, the agency or court placing the child “shall follow” that preference, so long as the placement is the least-restrictive setting appropriate to the particular needs of the child.[xi] Where appropriate, the preference of the child and parent are also considered.

Additional Findings.

Additional findings are required in ICWA cases when placing a child in foster care or terminating parental rights. Before placing a child in foster care, a court must make a determination, supported by clear and convincing evidence including the testimony of qualified expert witnesses, that the continued custody of the child by the parent or custodian is likely to result in emotional or physical damage to the child.

No termination of parental rights may be ordered without a determination, supported by evidence beyond a reasonable doubt including testimony of qualified expert witnesses, that the continued custody of the child by the parent or custodian is likely to result in serious emotional or physical damage to the child. A finding of serious emotional or physical damage must be made in addition to the requirements of Idaho Code §§ 16-2005 and -2009 that the grounds for termination have been met based upon clear and convincing evidence.

The failure to meet the requirements of ICWA can have severe repercussions for a petitioner’s case.  If the requirements of ICWA are not met and a child is found to have been improperly removed, 25 U.S.C. § 1920 requires courts to decline jurisdiction and return the child to his parent or Indian custody unless returning the child would subject the child to a substantial and immediate danger or threat of such danger.

Example of ICWA in Practice in Idaho

Recently, ICWA has been a hot topic in Idaho courts.  The Idaho Supreme Court heard two cases involving ICWA in 2015 and another in 2016. Idaho Dep’t of Health & Welfare v. Doe, one of the 2015 cases, can serve as an example of how ICWA can apply in a child protection case. In that case, a mother appealed from an order terminating her parental rights.[xii]

The Facts.

TSD, Doe’s son, was removed from Doe’s custody in 2012. An officer responded to a call reporting an unattended toddler. When the officer arrived, he recognized the toddler as two-year-old TSD. He made contact with Doe, who, along with three minors, was intoxicated. Doe expressed concern that she had a problem with alcohol and said she needed treatment. The officer took TSD into custody pursuant to the Child Protective Act.

TSD was placed in the care of Doe’s aunt, an extended family member. At the next hearing, the court granted legal custody to the Idaho Department of Health and Welfare (“DHW”) and determined that TSD was an Indian child. Because of TSD’s status as an Indian child, ICWA applied.

DHW submitted an extensive case plan with the goal of reunifying TSD with his parents. The plan was endorsed by the court. The plan called for Do to complete substance abuse treatment, a mental health evaluation, and parenting classes. Doe was also to abide by the terms of her probation, attend TSD’s medical and therapy appointments, and attend regular visits with TSD.

After a four-day trial where the court heard testimony from fifteen witnesses, the magistrate court granted the State’s petition to terminate Doe’s parental rights. Doe did not appear at any part of the trial. The court found by clear and convincing evidence that TSD’s parents neglected and abandoned him and that his best interests would be served by terminating their parental rights. Because ICWA applied, the court made additional findings that DHW made “active efforts” to prevent the breakup of the family and found, by evidence beyond a reasonable doubt, that continued custody of TSD by DOE would likely result in serious emotional or physical harm to him.

Doe appealed, claiming that first, she had requested additional treatment and was told none was available and second, that the foster mother interfered by objecting to providing Doe with contact information for a child care facility. 

The Holding.

The Idaho Supreme Court found that DHW provided appropriate active efforts. DHW arranged for weekly supervised visits with TSD, but Doe stopped participating the visits, making 23 of the 77 visits. TSD was enrolled in individual counseling specifically designed to strengthen his relationship with his parents and Doe was encouraged to attend, but she only attended 3 of the 80 appointments. TSD was scheduled for regular medical and therapeutic appointments to understand and address his developmental delays, but Doe only attended 5 of the 64 speech therapy appointments.

DHW arranged for parenting classes for Doe to take, but she dropped out and did not return. Finally, DHW arranged for Doe to participate in multiple drug and alcohol treatment programs, Doe completed one and dropped out of another and resumed her regular abuse of alcohol. Doe had almost no contact with DHW for the eleven months leading up to the trial to terminate her rights.

In affirming the termination, the Idaho Supreme Court noted that even if DHW failed in the ways Doe claimed, “one or two failures on the part of DHW do not entail wholesale failure with respect to the active efforts requirement.” The case fell under the auspices of ICWA, DHW made consistent efforts to involve the family in efforts to avoid breaking up the family, and additional findings were made to satisfy the requirements of ICWA.[xiii]


As this article demonstrates, when handling a situation where parental rights may be terminated, it’s recommended that you determine if any of the children or their parents are members of a tribe. This threshold determination may require additional research including direct contact with a tribe to determine if a potentially eligible person is a member. If your case involves a tribal member, the ICWA has specific requirements that must be met.  Hopefully, this article will provide you with a way path under the ICWA. 

Johnathan R. Baldauf is a founding partner of Baldauf Masser, LLP, a small Boise-based firm focused on family law and criminal defense. When not handling those issues, he enjoys hanging out with his girlfriend, Shannon, and dog, Echo (a German Shepherd), game nights, trivia, and going to the gym.

[i] 25 U.S.C. 1901, et al.

[ii] IDHW v. Doe, 157 Idaho 920, 923, 342 P.3d 632, 635 (2015).

[iii] 25 CFR § 23.

[iv] 44 FR 67584.

[v] In re A.N., 325 Mont. 379, 384, 106 P.3d 556, 560 (2005).

[vi] Idaho Dep’t of Health & Welfare v. Doe, 152 Idaho 797, 805, 275 P.3d 23, 31 (Ct. App. 2012) (quoting Dashiell R. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 222 P.3d 841, 849 (Alaska 2009)).

[vii] 25 U.S.C. § 1911.

[viii] 25 U.S.C. 1911(a).

[ix] Pub. L. 83-280.

[x] See Doe v. Doe, 158 Idaho 614, 620, 349 P.3d 1205, 1211 (2015).

[xi] 25 U.S.C. 1915(c).

[xii] 157 Idaho 920, 921, 342 P.3d 632, 633 (2015).

[xiii] 157 Idaho 920, 926, 342 P.3d 632, 637-8 (2015).