What is the Indian Child Welfare Act (ICWA) and how does it help tribal families?

The Indian Child Welfare Act is a federal law passed in 1978. This law mandates that state courts act to preserve the unity of Native American families by giving preference for out of home placements first to extended families, then to foster families in the child's own tribe, and finally to foster families of another tribe. ICWA also regulates how states handle child abuse, child neglect, and adoption cases involving Native American children. It also allows tribal courts to request that a child's case be transferred from the state court to the tribal court.

ICWA gives parents certain rights and child welfare agencies certain responsibilities:

• ICWA requires that the agency make "active efforts" to keep the child at home before state child welfare agencies can take the child from his or her family. That includes providing direct services to reduce or eliminate the perceived risk to a child's safety and well-being.
• Before any legal proceedings take place involving a child, the Indian parent or Indian custodian must receive notice by registered mail of pending proceedings. This notice is also required if a child must be removed from his or her home. No hearing can take place until 10 days after the notice is received. The parent/custodian and the tribe are also entitled to receive up to 20 days to prepare for the proceeding;
• If the family cannot afford legal counsel, under ICWA, the court should provide counsel. If this is not available in the involved state, the court should notify the U.S. Secretary of the Interior, who will pay reasonable fees and expenses for legal representation.
• Before removing a child from his home, ICWA requires an expert witness testify in court that placement is necessary. The witness must be Native American or experienced with Native American families.