What is ICWA
Alaska Native Indian Child Welfare Association
Alaska Child
Welfare Summit
All Together ~ For
Our Children

April 8-10, 2008
Millennium Hotel
Anchorage


For more information
Click here

Background:

Alaskan Native children were removed from their families and communities without due
process by social workers for fear threat of losing welfare benefits. The social workers
testified as "experts" that poverty on reservations was an obstacle to "proper" parenting.
Evidently, they found no need to measure parental love and affection or cultural fulfillment
as off-sets to poverty when determining proper parenting. Common bases for removal were
neglect and emotional mistreatment because a biological parent would leave her  child with an
extended family member for lengthy periods of time. Indian parents commonly leave a child
with relatives who shape the child's cultural knowledge.  Social workers unfamiliar with tribal-
rearing practices found the practice unacceptable under Anglo-American standards.

What is the Indian Child Welfare Act?

The Indian Child Welfare Act (ICWA) is a federal law which regulates placement
proceedings involving Indian children. If your child is a member of a tribe or eligible for
membership in a tribe, your family has the right to protection under the ICWA. These
rights apply to any child protective case, adoption, guardianship, termination of paternal
rights action, runaway/truancy matter, or voluntary placement of your children. The
Indian Child Welfare Act (ICWA) – 25 U.S.C § 1912 et seq. was passed "…to protect the
best interests of Indian children and promote the stability and security of Indian families
and tribes." Prior to the passage of the Act, a shockingly large percentage of Indian
children were removed from their family homes and placed in non-Indian settings, and
this continues today. The Act established minimum federal standards for removing Indian
children from their homes with the intent of stopping this cultural displacement.

The ICWA was created in 1978 by the federal government in order to reestablish tribal
authority over adoption of Native American/Alaskan children. The goal of the act when
passed in 1978 was to strengthen and preserve Native American/Alaskan families and their
culture.

Who is Protected by ICWA?

To be covered under the ICWA, the child must be:

  • unmarried and under 18
  • a member of an Indian tribe or
  • eligible for membership in an Indian tribe and
  • the biological child of a member of an Indian tribe


What Proceedings are covered by the ICWA?

  • foster care placements
  • termination of parental rights
  • pre-adoptive placement in a home or institution after
            termination of parental rightsadoptive placement


What Proceedings Are Not Covered?

  • custody to one parent as part of a divorce
  • placement based on an act which would be a crime if committed by an adult
  • placements occurring before May 7, 1979


How Does ICWA Operate?

When a child(ren) has been detained by the Office of Children Services (OCS) on behalf
of the State of Alaska, an initial determination is made as to whether the child is an  
Alaskan Native or American Indian. If such a determination is made, OCS must notify the
parents of Indian custodian and the child’s tribe of the pending proceedings and of their
right to intervene. At court proceedings "clear and convincing evidence" must be
produced before the court will order foster placement, including the testimony of qualified
expert witnesses. "Evidence beyond a reasonable doubt" is needed, including expert
witness testimony, to remove a child permanently from his/her parents. A "qualified
expert witness" is one who has expertise beyond the normal social worker, specifically:


  • tribal members knowledgeable in tribal family organization and child rearing
  • lay experts with experience in Indian child and family services and social and cultural
    standards of the child’s tribe
  • professional person (e.g. therapist, teacher)

Placement Preferences

Foster care and adoption preferences must follow a specified order. In foster/pre-
adoptive placement the order of preference is:

  • member of child’s extended family
  • foster home licensed/approved by child’s tribe
  • Native foster home licensed/approved by OCS
  • children’s institution approved by the tribe or operated by an Native organization

In adoptive placements, the order of placement is:

  • member of child’s extended family
  • other member of child’s tribe
  • other Indian families

An Indian child may be placed in a non-Indian home only is a "diligent" search has failed
to find an Indian home. The tribe may establish a different preference order by resolution,
and this will be followed if it is the "least restrictive" placement. Where appropriate, the
preference of the Indian child or parent shall be considered.

Rights of Parents or Custodians

The rights of parents or custodians under the ICWA include:

  • Right to have an attorney appointed at all stages of an involuntary placement proceeding
    the parent or custodian cannot afford one.
  • Right to remedial services: The court must be satisfied that active efforts have been made
    to provide rehabilitative services and programs designed to prevent the breakup of the
    Indian can include, but are not limited to, drug treatment, counseling, parenting classes and
    life skills education.
  • Confidentiality: On any voluntary adoption, the parent; identity can be concealed from
    everyone but those official handling the adoption, including tribal officials.
  • Return upon Demand: In voluntary placements, the parent or custodian is entitled to the
    return of the child on demand. In a voluntary adoption, the parent can seek the return of
    the child until the adoption decree is final.

Rights of Tribes

  • Full participation in proceedings: A tribe may intervene at any point in the proceedings,
    present testimony, cross-examine witnesses and have access to records.
  • Licensing Indian adoptive or foster homes: A tribe may establish and operate a licensing
    system to regulate foster and adoptive homes.  
  • Transfer to tribal court: A tribe may request transfer of a child custody or adoption
    proceeding from the state or county court to tribal court.


Indian/Native Foster Home Recruitment

Foster parenting is an old concept for the Alaskan Native Community. Generations ago, Native
families were foster parents – they were simply called "extended family." Without the extended
family, we could not have maintained our valuable Indian traditions. Providing foster care can be a
fulfilling and meaningful family experience. Many agencies along with OCS is actively recruiting
Native foster parents so homes are available for the placement of Native children under the ICWA.
Recruitment services include payment of application fees, assistance with the completion of
paperwork and the interface with the county licensing department to reduce the stressful impact of
opening ones home to county workers. There is support for the many demands of foster parenting
such as transporting the child to regular medical, dental or therapy appointments. Contacts at OCS
can assists with supervising visits the child’s natural parents and provides quarterly foster parent
training.