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I Want to Learn About My ICWA Legal Options

The implication of ICWA for child custody proceedings and the role of BIA

Understand ICWA further, the legal options of ICWA cases, and the role BIA plays.

Does ICWA apply to my case?

Federal regulations provide that the Indian Child Welfare Act (ICWA) applies to child-custody proceedings and emergency proceedings involving an Indian child.  An “Indian child” is any unmarried person who is under age 18 and either:

  1. Is a member or citizen of an Indian Tribe; or
  2. Is eligible for membership or citizenship in an Indian Tribe and is the biological child of a member/citizen of an Indian Tribe.  See 25 C.F.R. 23.2, 23.

Indian Tribes are listed here. The court handling the proceeding determines whether ICWA applies, not the Department of the Interior, and the Department does not provide opinions as to the merits of any state court child-custody proceeding. 

If ICWA does apply, what rights must the court inform me of?

 If ICWA applies, the court must inform you of your:

  1. Rights to an attorney or appointed counsel and, if the court determines you cannot afford counsel, you have the right to court-appointed counsel.
  2. Right to request that the child-custody proceeding be transferred to Tribal court,
  3. Right to object to a transfer to Tribal court,
  4. Right to request additional time to prepare for the child custody proceeding as provided in § 23.112. Up to 20 additional days from the date upon which notice was received can be granted to prepare for participation in the proceeding.
  5. Right to intervene (if the parent or Indian custodian is not already a party in a child custody proceedings).

What happens if the court determines I am indigent?

If a court determines you are an indigent Indian, under 25 C.F.R. 23.13(b), the BIA Regional Director must certify that you are “eligible to have… appointed counsel compensated by the BIA,” taking into account factors such as the availability of funding.  The BIA Regional Director may deny certification on the basis that “[f]unds are not available for the particular fiscal year.”  25 C.F.R. 23.13(b)(6). Upon appointing counsel, the state court should have sent a written notice to the BIA Regional Director containing all of the information listed in 25 C.F.R. 23.13(a)(1)-(7).  This notice is separate from the ICWA Notice, Petition to Adopt, or other related documents.  The BIA Regional Director will have 10 days to notify the state court, the indigent Indian client, and the appointed attorney as to whether the client has been certified as eligible to have his or her attorney fees paid by the BIA. 

Does ICWA apply to Tribes?

The ICWA does not apply to Tribes. The Department does not provide oversight on how, when and if, the Tribe intervenes or participates in a State ICWA case. If the Tribe chooses to transfer the case to Tribal court, the case is governed by the Tribe’s laws as a Sovereign Nation after transfer.

Can the Department of the Interior or Bureau of Indian Affairs assist me in my ICWA case?

The Department of the Interior, including the Bureau of Indian Affairs, cannot provide any legal advice.  Nor can we represent individuals or Tribes in legal ICWA court proceedings.  The Department does not have the legal authority to participate in, or give legal advice or guidance in a specific ICWA case.

What can the Department of the Interior do for my ICWA case?

If you contact us, our staff will do our best to answer your questions without providing any legal advice, provide emotional support, and direct you toward helpful resources

What if the State is not complying with ICWA?

The Department does not provide oversight of States ICWA requirements. If you think the State is not complying with ICWA please refer to 25 U.S.C. §§ 1913(d) and 1914, as well as 25 C.F.R. 23.137, which establish (1) situations in which a child placement can be challenged for failure to comply with ICWA; and (2) the individuals and entities that are entitled to bring such a challenge.  We suggest that you contact the child’s Tribal ICWA Designated Agent, as well as an attorney familiar with ICWA compliance, to discuss your options.

A motion to invalidate a child custody proceeding based on non-compliance with ICWA is governed by the laws of the State with jurisdiction over the proceeding at issue.  The Department does not have the authority to obtain or file these materials on your behalf.  If you need assistance in challenging ICWA we suggest that you contact the clerk of whatever court has handled the child custody proceedings to date and request their assistance in finding the relevant materials and request assistance to obtain legal counsel through a local Legal Aid or similar organization.

Who should I contact if I think ICWA applies to my child’s case?

You may contact the Tribally designated ICWA agent for your child’s Tribe. The most recently published list of Tribally designated agents is available ICWA Designated Agents Listing.

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