Indian Child Welfare Act (ICWA)

Indian Child Welfare Act (ICWA)

The Indian Child Welfare Act (ICWA) was enacted by Congress in 1978 in response to the alarming number of American Indian children who had been removed from their families and placed in non-Indian homes, isolated from their tribe, their history, and their culture.

ICWA sets federal requirements for state or private agencies related to the removal and placement of Native American children who are members of or eligible for membership in a federally recognized tribe. These requirements are stricter than standard requirements for removal.

According to the law (25 U.S. Code § 1902), “It is the policy of this Nation to protect the best interests of Indian children and to promote the 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, and by providing for assistance to Indian tribes in the operation of child and family service programs.”

Forty years later, American Indian and Alaska Native children are overrepresented in foster care at a rate of more than 2.5 times their rate in the general population in the United States, according to the Children’s Bureau. Montana is among those states.  In fact, according to the National Council of Juvenile Family Court Judges (NCJFCJ), Montana’s rate of American Indian children in foster care is 3.7 times as high as the rate of Caucasian children.

Such data have prompted calls for national attention to ICWA compliance. In addition, in June 2016, the U.S. Department of the Interior’s Bureau of Indian Affairs released new final regulations governing state court and agency child custody proceedings to ensure uniform compliance with the Indian Child Welfare Act of 1978. The new regulations took effect December 2016.

In Montana, CIP is participating in the creation of a tribal-state judicial forum, similar to those in other states. The idea was first discussed during the Confederated Salish & Kootenai Tribes’ ICWA conference in September 2015.  The purpose of ICWA forums is to bring state and tribal judges together to discuss issues that cross jurisdictions in child welfare cases, with the goal of improved communication and collaboration.

In addition to the Montana tribal-state judicial forum, CIP assists the tribal Court Improvement Program director of the Confederated Salish & Kootenai Tribes in promoting CSKT’s annual ICWA conference. CIP helps with outreach to state attorneys, judges, and CASA advocates. The conference is sponsored by CSKT and is held at the KwaTaqNuk in Polson.

  • 13 September 2017
  • Author: Anonym
  • Number of views: 3259
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Categories: CAP

Next Questions and Setting Court Expectations 


Note: Montana has nearly the highest number of children in foster care in the nation relative to the state's population. In 2016, Montana had the highest rate of child removal in the country. In 2017, Montana had the second highest removal rate. We must do better to reduce removals, to reduce time in foster care and to strengthen and reunite families. If you do nothing else, ASK THESE QUESTIONS AT EVERY HEARING.

  1. Do you know or have reason to know that the child is an Indian child? What potential tribes?


  2. What has been done to prevent removal?


  3. What is being done to decrease the child's time in foster care?


  4. What are the specific safety issues preventing the child from being returned home today?


  5. What efforts has the Department made to place the child with a relative or kin (friend or other individual identified by parent)?


  6. How are the Department, parents, and others supporting stability for the child (in placement, school, etc.)?


  7. What other efforts must be made to support the child and promote timely permanency in case the safety issues cannot be ameliorated?


  8. Ask parent: How do you think things are going?


Note: Holding all parties accountable improves parent engagement and timely permanency. The following are suggested to develop a plan as to how the case will proceed, what is expected of each party, and the timeframe for completion of tasks and their review by the Court.

  1. What has been accomplished since the last hearing?
    1. Parent?
    2. Department?


  2. What is the plan for unsupervised visits?

    (Presumption that visits should be unsupervised can be changed only if substantial safety risks are present. A generalized belief the parent may not return the child or the parent has history of drug use, etc., is not enough to prevent unsupervised visits.)

  3. Can visitation be increased or less restrictive?


  4. Engage parents – ask:
    1. How do you think things are going? What do you think you need at this time?
    2. What do you think your child needs at this time?
    3. How can we be assured child will be safe with you during visits?
    4. Find out about parent's living, work, and family situations
    5. Do you understand what you need to do for child to be returned?
    6. Is anything interfering with your ability to do the tasks necessary for your child to be returned?


  5. What must be accomplished before the next hearing?
    1. What will parent do?
    2. What will the Department do?


  6. Set next hearing in open court


  7. Summarize the plan and the Court's expectations – what will CPS/ SW do, what will parent do, what will attys do prior to next hearing.


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