Reprinted from Westlaw with permission of Thomson/West. If you wish to check the currency of this case [or statute], you may do so by using KeyCite on Westlaw by visiting www.westlaw.com.


25 U.S.C.A. § 1903

United States Code Annotated
Title 25.  Indians
Chapter 21. Indian Child Welfare (Refs & Annos)

§ 1903. Definitions


For the purposes of this chapter, except as may be specifically provided otherwise, the term--


(1) "child custody proceeding" shall mean and include--


(i) "foster care placement" which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;


(ii) "termination of parental rights" which shall mean any action resulting in the termination of the parent-child relationship;


(iii) "preadoptive placement" which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement;  and


(iv) "adoptive placement" which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.


Such term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents.


(2) "extended family member" shall be as defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent;


(3) "Indian" means any person who is a member of an Indian tribe, or who is an Alaska Native and a member of a Regional Corporation as defined in section 1606 of Title 43;


(4) "Indian child" means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe;


(5) "Indian child's tribe" means (a) the Indian tribe in which an Indian child is a member or eligible for membership or (b), in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts;


(6) "Indian custodian" means any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child;


(7) "Indian organization" means any group, association, partnership, corporation, or other legal entity owned or controlled by Indians, or a majority of whose members are Indians;


(8) "Indian tribe" means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village as defined in section 1602(c) of Title 43;


(9) "parent" means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom.  It does not include the unwed father where paternity has not been acknowledged or established;


(10) "reservation" means Indian country as defined in section 1151 of Title 18 and any lands, not covered under such section, title to which is either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation;


(11) "Secretary" means the Secretary of the Interior;  and


(12) "tribal court" means a court with jurisdiction over child custody proceedings and which is either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian tribe, or any other administrative body of a tribe which is vested with authority over child custody proceedings.


CREDIT(S)


(Pub.L. 95-608, § 4, Nov. 8, 1978, 92 Stat. 3069.)


HISTORICAL AND STATUTORY NOTES


Revision Notes and Legislative Reports


1978 Acts. House Report No. 95-1386, see 1978 U.S. Code Cong. and Adm. News, p. 7530.


CROSS REFERENCES


"Indian reservation" defined as in this section for purposes of community development banking and financial institutions, see 26 USCA § 168.


Indian tribe defined to include Houlton Band of Maliseet Indians, see 25 USCA § 1727.


Reservation defined to include Passamaquoddy and Penobscot Indian Reservations, see 25 USCA § 1727.


LAW REVIEW COMMENTARIES


Alaskan native Indian villages:  The question of sovereign rights.  Comment, 28 Santa Clara L.Rev. 875 (1988).


Fighting over Indian children:  The uses and abuses of jurisdictional ambiguity.  Barbara Ann Atwood, 36 UCLA L.Rev. 1051 (1989).


Geographically-based and membership-based views of Indian tribal sovereignty:  The Supreme Court's changing vision.  Allison v. Dussias, 55 U.Pitt.L.Rev. 1 (1993).


In re Junious M.:  The California application of the Indian Child Welfare Act.  Note, 8 J.Juv.L. 78 (1984).


Protecting abused children:  A judge's perspective on public law deprived child proceedings and the impact of the Indian Child Welfare Acts.  Edward L. Thompson, 15 Am.Indian L.Rev. 1 (1990).


LIBRARY REFERENCES


American Digest System


Indians 6(2), 32(11).


Key Number System Topic No. 209.


RESEARCH REFERENCES


ALR Library


89 ALR 5th 195, Construction and Application of Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. §§ 1901 et seq.) Upon Child Custody Determinations.


Encyclopedias


2 Am. Jur. 2d Adoption § 119, Requirements Under Indian Child Welfare Act.


2 Am. Jur. 2d Adoption § 145, Race; Cultural Background.


Treatises and Practice Aids


14 Causes of Action 817, Cause of Action to Withdraw or Revoke Parental Consent to Adoption.


Federal Procedure, Lawyers Edition § 46:469, Exclusive Jurisdiction of Tribes.


Federal Procedure, Lawyers Edition § 46:483, Petition to Reassume Jurisdiction.


NOTES OF DECISIONS


Admissions 10

Adoption 4

Child custody proceeding 1

Foster care placement 2

Indian 5

Indian child 6

Indian custodian 7

Indian tribe 8

Jurisdiction 11

Parent 9

Termination of rights 3

  

1. Child custody proceeding


Term "child custody" as used in provision of the Indian Child Welfare Act giving tribal court exclusive jurisdiction over certain issues does not include the resolution of long-term custody disputes between the parents. Confederated Tribes of Colville Reservation v. Superior Court of Okanogan County, C.A.9 (Wash.) 1991, 945 F.2d 1138.  Indians  6.8


Although the Indian Child Welfare Act gives Indian tribes exclusive jurisdiction to determine custody of Indian children, statute only applies to proceedings to determine foster care placement, termination of parental rights, preadoptive placement and adoptive placement;  exclusive jurisdiction was not given in proceedings to determine the custody of children in a divorce proceeding.  DeMent v. Oglala Sioux Tribal Court, C.A.8 (N.D.) 1989, 874 F.2d 510.  Indians  6.5


Indian Child Welfare Act did not apply to intrafamily child custody dispute between husband and wife who was enrolled member of Indian tribe.  In re Custody of Sengstock, Wis.App.1991, 477 N.W.2d 310, 165 Wis.2d 86. Indians  6.8


Indian Child Welfare Act was not applicable to custody dispute;  placement of child with parent in connection with divorce decree was not "child custody proceeding" within meaning of Act.  Harris v. Young, S.D.1991, 473 N.W.2d 141.  Indians  6.8


Application of Indian Child Welfare Act to case is contingent only upon whether Indian child is subject of child custody proceeding as those terms are defined by Act.  Matter of Adoption of Baade, S.D.1990, 462 N.W.2d 485. Indians  6.6(1)


Proceeding to determine whether children are in need of assistance due to mother's unfitness could result in temporary foster home placement of Indian children and clearly fell under this chapter.  In Interest of J.R.H., Iowa 1984, 358 N.W.2d 311.  Indians  6.6(1)


This chapter, enacted to establish standards to be used in child custody proceedings for placement of Indian children in foster or adoptive homes, but providing that term "child custody proceeding" shall not include placement based upon an award, in a divorce proceeding, of custody to one of the parents, does not apply to award of custody of a child or children to one or the other parent as a result of a divorce proceeding.  Malaterre v. Malaterre, N.D.1980, 293 N.W.2d 139.  Indians  6.8


Indian Child Welfare Act (ICWA) was applicable to adoption proceeding, as proceeding was a "child custody proceeding" within meaning of the Act, and father of child was the member of an Indian tribe.  Matter of Adoption of M., Wash.App. Div. 2 1992, 832 P.2d 518, 66 Wash.App. 475.  Indians  6.10


Situations in which child has never been part of Indian family relationship are not excepted from Indian Child Welfare Act requirement that Indian child's tribe receive notice and be permitted to intervene in certain actions affecting child's custody.  In re Custody of S.B.R., Wash.App.1986, 719 P.2d 154, 43 Wash.App. 622, reconsideration denied.  Indians  6.6(3)


2. Foster care placement


Provisions of the federal Indian Child Welfare Act requiring return of Indian child to its parents upon parents' withdrawal of consent to foster care placement applies to situations wherein consensual foster care placement was made in first place and there is no inherent bar to withdrawal of consent; provisions, as interpreted, were not contradictory to provision defining "foster care placement" as temporary placement where parent cannot have child returned upon demand.  (Per Cirillo, President Judge, with one Judge concurring).  In re Adoption of K.L.R.F., Pa.Super.1986, 515 A.2d 33, 356 Pa.Super. 555, appeal granted 522 A.2d 50, 514 Pa. 624, appeal granted 522 A.2d 50, 514 Pa. 625, appeal dismissed 533 A.2d 708, 516 Pa. 520. Indians  6.6(1)


Placement of Indian child with her grandmother would be placement in home of  "guardian or conservator," within meaning of Indian Child Welfare Act, and thus, proposed placement with grandmother was "foster care placement," for purposes of Indian Child Welfare Act, permitting child's Indian tribe to intervene in custody dispute.  In re Custody of A.K.H., Minn.App.1993, 502 N.W.2d 790, review denied.  Indians  6.8


Indian Child Welfare Act did not bar suit against county in connection with foster care placement of Indian child.  Sayers by Sayers v. Beltrami County, Minn.1992, 481 N.W.2d 547.  Counties  141;  Indians  6.6(1)


Proceeding in which non-Indian paternal great-aunt and her husband sought guardianship of Indian children after children's mother was murdered was proceeding for "foster care placement" under Indian Child Welfare Act, for purposes of determining whether proceeding was required to be transferred to jurisdiction of tribe;  children were removed from "Indian custodian" in that tribal tradition dictated that children's maternal Indian aunt was vested with custody following murder.  Matter of Guardianship of Ashley Elizabeth R., N.M.App.1993, 863 P.2d 451, 116 N.M. 416.  Indians  6.6(2)


Voluntary foster care placement agreement Indian mother signed for placement of her Indian child was not subject to Indian Child Welfare Act requirements for written consent agreement found in 25 U.S.C.A. § 1913(a);  agreement entered into by mother did not fall into the Act's definition of "foster care placement" or other provisions of 25 U.S.C.A. § 1903(1), as mother could have child returned to her "at any time."  D.E.D. v. State, Alaska 1985, 704 P.2d 774.  Indians  6.6(1)


3. Termination of rights


Indian Child Welfare Act applied to termination of Caucasian mother's parental rights to Indian child, despite proposition that purpose of Act is maintenance of Indian family.  Matter of N.S., S.D.1991, 474 N.W.2d 96.  Indians  6.6(1)


Indian Child Welfare Act was inapplicable to proposed termination of parental rights of mother who was member of Indian tribe;  children did not qualify for membership in tribe and consequently none of them was an "Indian child" as required for the Act to apply.  In re Interest of J.L.M., Neb.1990, 451 N.W.2d 377, 234 Neb. 381.  Indians  6.6(1)


4. Adoption


Neither Indian Child Welfare Act nor Oklahoma Indian Child Welfare Act applied to adoption of a baby without unwed father's consent where there was no evidence that the father, baby's mother, or the baby was a member of an Indian tribe.  Matter of Adoption of Baby Boy W., Okla.1992, 831 P.2d 643. Indians  6.10


Indian Child Welfare Act (ICWA) is inapplicable to adoption proceeding when Indian child is not being removed from Indian cultural setting, natural parents have no substantive ties to specific tribe, and neither parents nor their families have resided or plan to reside within tribal reservation;  in such situation, whether or when child meets definition of "Indian child" under ICWA is not controlling.  Matter of Adoption of Crews, Wash.1992, 825 P.2d 305, 118 Wash.2d 561.  Indians  6.10


5. Indian


Indian Child Welfare Act did not apply to dependency proceedings involving mother who claimed to be of "Creole Indian ethnic heritage";  term "Creole" is not defined to include native American tribal heritage.  In re John v., Cal.App. 6 Dist.1992, 7 Cal.Rptr.2d 629, 5 Cal.App.4th 1201, modified, review denied.  Indians  6.6(1)


Tribes are arbitrators of their own membership, for purpose of Indian Child Welfare Act.  In Interest of J.W., Iowa App.1993, 498 N.W.2d 417. Indians  6.5


Under Indian Child Welfare Act (ICWA), enrollment is not necessary condition of tribal membership;  although membership may be established through proof of enrollment, enrollment is not the exclusive test.  Nelson v. Hunter, Or.App.1995, 888 P.2d 124, 132 Or.App. 361.  Indians  6.5


Enrollment in tribe is common evidentiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative of whether tribal notice and opportunity to be heard regarding applicability of Indian Child Welfare Act are necessary in action for involuntary termination of parental rights of child.  In Interest of H.D., Kan.App.1986, 729 P.2d 1234, 11 Kan.App.2d 531.  Indians  1


Whether a child meets definition of a "native" under Alaska Native Claims Settlement Act is not determinative of whether the child is an Indian child within meaning of the Indian Child Welfare Act.  State ex rel. Juvenile Dept. of Lane County v. Tucker, Or.App.1985, 710 P.2d 793, 76 Or.App. 673, review denied 717 P.2d 1182, 300 Or. 605.  Indians  6.6(1)


Testimony by enrollment officer of Indian tribe that she approved enrollment applications and certified enrollment in the tribe, that natural mother and child were duly enrolled members in the tribe, evidence that tribe was federally recognized, testimony by natural father that he was an enrolled member of another tribe, and evidence that the tribe is included on a Bureau of Indian Affairs list of federally recognized tribes, sustained finding that parents were entitled to the protections of this chapter.  Application of Angus, Or.App.1982, 655 P.2d 208, 60 Or.App. 546, review denied 660 P.2d 683, 294 Or. 569, certiorari denied 104 S.Ct. 107, 464 U.S. 830, 78 L.Ed.2d 109.  Indians  6.6(3)


6. Indian child


Adoptive father's membership in Mohawk Tribe and juvenile's eligibility to be member did not qualify juvenile as "Indian child" within meaning of Indian Child Welfare Act.  In re M.C.P., Vt.1989, 571 A.2d 627, 153 Vt. 275. Indians  6.10


Tribe's refusal to enroll baby as member of tribe was not determinative of baby's status as "Indian child," under the Indian Child Welfare Act, in putative father's action to challenge judgment of adoption;  tribe had determined that baby was not eligible for membership because his ancestry was uncertain and not because baby was of insufficient Indian ancestry, and the Supreme Court believed that Congress intended child's eligibility for tribal membership to be question of fact dependent on child's actual ancestry. Matter of Adoption of a Child of Indian Heritage, N.J.1988, 543 A.2d 925, 111 N.J. 155.  Indians  6.10


In child custody proceeding in which it appeared that minor may have been an Indian child, trial court erred by not notifying tribe in question and seeking its determination of child's Indian status, which determination would have been conclusive for purpose of deciding whether this chapter was applicable;  such error was prejudicial, and required reversal, since it could not be said as a matter of law that minor was not an "Indian child" within meaning of this chapter.  In re Junious M., Cal.App. 1 Dist.1983, 193 Cal.Rptr. 40, 144 Cal.App.3d 786.  Indians  6.6(3)


For purposes of proceedings to terminate parental rights, trial court must initially determine if child is "Indian child" within meaning of Indian Child Welfare Act (ICWA), which is unmarried person who is under age 18 and is either member of Indian tribe or eligible for membership in Indian tribe and is biological child of member of Indian tribe.  People ex rel. South Dakota Dept. of Social Services in Interest of C.H., S.D.1993, 510 N.W.2d 119. Indians  6.6(1)


Absent evidence that child was "Indian child," Indian Child Welfare Act (ICWA) was not applicable to parental rights termination proceeding;  although mother and father informed caseworker and also testified that each had Indian heritage, nothing in the record established their or child's membership or eligibility for membership in any tribe and although Department of Human Services gave notice of these proceedings to Secretary of Interior pursuant to ICWA, no tribe responded.  In Interest of A.G.-G., Colo.App.1995, 899 P.2d 319, rehearing denied.  Indians  6.6(1)


Evidence was insufficient to establish that father, who had approximately 38% Me-Wuk blood, was member of tribe and thus that his children were "Indian children," as required to support application of Indian Child Welfare Act (ICWA) to petition seeking adoption of father's children without his consent; although there was evidence that father's mother was of approximately 75% Me-Wuk blood and that both his mother and grandmother were enrolled members of the tribe, there was no evidence that their names appeared on the "Official Voter's List of the band as of April 1, 1935" or that either was a listed child, under the age of 21, at that time, as required to establish membership under the band's constitution and bylaws.  Nelson v. Hunter, Or.App.1995, 888 P.2d 124, 132 Or.App. 361.  Indians  6.10


Indian Child Welfare Act (ICWA) required state courts to determine application of ICWA including determination whether child was "Indian Child" as defined by ICWA, and there was no requirement in ICWA that tribe make conclusive determination of child's eligibility for membership in tribe as proof that child is "Indian child," provision in Bureau of Indian Affairs (BIA) guidelines requiring state court to give conclusive effect to determination by Indian tribe as to child's eligibility for membership was merely to aid state courts in deciding when to apply ICWA and did not require tribe to determine child's eligibility before state court could apply ICWA.  Matter of Baby Boy Doe, Idaho 1993, 849 P.2d 925, 123 Idaho 464, certiorari denied 114 S.Ct. 173, 510 U.S. 860, 126 L.Ed.2d 133.  Indians  6.6(1)


7. Indian custodian


Biological grandparents never had legal or physical custody of Indian child, and thus were not "Indian custodians" of child and had no adoption rights under Indian Child Welfare Act (ICWA).  Navajo Nation v. Superior Court of State of Wash. for Yakima County, E.D.Wash.1999, 47 F.Supp.2d 1233, affirmed 331 F.3d 1041.  Indians  6.10


Grandmother of minor Indian children did not qualify as "Indian custodian" of those children for purposes of statute which requires that, in involuntary custodial rights termination proceedings, child's parents or Indian custodian and Indian child's tribe shall be notified;  grandmother had no legal custody under tribal law or custom, and Department of Social Services' placement of children with grandmother did not transfer legal custody, which Department retained.  People in Interest of J.J., S.D.1990, 454 N.W.2d 317. Indians  6.6(3)


Evidence was sufficient to support determinations that Indian child's maternal aunt was not "Indian custodian" of child within meaning of this section and was unfit to have custody of child.  (Per McCown, J., with one Justice concurring and three Justices concurring in result.)  In re Interest of Bird Head, Neb.1983, 331 N.W.2d 785, 213 Neb. 741.  Infants  175.1;  Infants  177


Protections of this chapter were not intended to apply to prospective adoptive parents against whom adoption decree was vacated when natural parent is seeking custody;  thus, such prospective adoptive parents were not "Indian custodian" within purview of this section.  A. B. M. v. M. H., Alaska 1982, 651 P.2d 1170, certiorari denied 103 S.Ct. 1893, 461 U.S. 914, 77 L.Ed.2d 283. Indians  6.10


Indian child's maternal aunt, who did not have legal custody of child but who assumed foster care of child and accepted state funds for such purpose, was not an "Indian custodian" within meaning of par. (6) of this section, so as to be entitled to notice prior to termination of foster care placement.  State ex rel. Juvenile Dept., Multnomah County v. England, Or.1982, 640 P.2d 608, 292 Or. 545.  Indians  6.6(3)


8. Indian tribe


Exclusion of the West Bay Band of Chippewa Indians, which was based in Canada, from the definition "Indian tribe" under the Indian Child Welfare Act did not violate equal protection;  classification was based on Indian tribe's eligibility for Department of Interior Services and reflected the unique relationship between the United States government and tribes located within U.S. boundaries.  Matter of T.I.S., Ill.App. 1 Dist.1991, 586 N.E.2d 690, 166 Ill.Dec. 732, 224 Ill.App.3d 475, appeal denied 591 N.E.2d 22, 169 Ill.Dec. 142, 144 Ill.2d 634, certiorari denied 113 S.Ct. 229, 506 U.S. 880, 121 L.Ed.2d 165.  Constitutional Law  215.2;  Indians  6.3(3)


Children ultimately can have but one tribe for purposes of the Indian Child Welfare Act.  In Interest of J.W., Iowa App.1993, 498 N.W.2d 417. Indians  6.5


9. Parent


Putative father, who did not file written acknowledgment of paternity or initiate lawsuit claiming paternity or any other parental rights prior to final judgment of adoption, who never attempted to enforce parental rights by petitioning to enter name on child's birth certificate, who never filed affidavit of paternity with tribe, and who took no action with respect to child until 21 months after child had been placed with adoptive parents, was not "parent," within meaning of Indian Child Welfare Act section granting parents from whose custody child has been removed right to challenge removal of custody.  Matter of Adoption of a Child of Indian Heritage, N.J.1988, 543 A.2d 925, 111 N.J. 155.  Indians  6.10


Evidence including father's membership application to tribe on child's behalf and filing of paternity affidavit with state and tribe was sufficient to support trial court's finding that father, an Indian, was one of "Indian child's" natural parents;  thus, trial court's decision that Indian Child Welfare Act (ICWA) did not apply to parental rights termination and adoption proceedings was not harmless error.  Matter of Baby Boy Doe, Idaho 1993, 849 P.2d 925, 123 Idaho 464, certiorari denied 114 S.Ct. 173, 510 U.S. 860, 126 L.Ed.2d 133.  Indians  6.6(3)


Indian Child Welfare Act applied to adoption of child by the child's Indian father and his wife, even though child's biological mother was not Indian. Matter of Adoption of T.N.F., Alaska 1989, 781 P.2d 973, certiorari denied 110 S.Ct. 1480, 494 U.S. 1030, 108 L.Ed.2d 616.  Indians  6.10


10. Admissions


In the case of child born out of wedlock to a non-Indian mother, until such time as the putative Indian father acknowledges or establishes paternity, the provisions of this chapter are not applicable.  Matter of Appeal in Maricopa County Juvenile Action No. A-25525, Ariz.App.1983, 667 P.2d 228, 136 Ariz. 528.  Indians  6.5


Once prospective adoptive parents admitted in superior court that child was Indian child subject to this chapter, they became bound by such admissions. A. B. M. v. M. H., Alaska 1982, 651 P.2d 1170, certiorari denied 103 S.Ct. 1893, 461 U.S. 914, 77 L.Ed.2d 283.  Evidence  265(2)


11. Jurisdiction


State court could not transfer its jurisdiction to Tribal Court to make custody determination regarding Indian child as part of divorce proceeding between father, who was enrolled tribal member, and mother who was not;  Indian Child Welfare Act does not apply to divorce proceedings.  Comanche Indian Tribe of Oklahoma v. Hovis, C.A.10 (Okla.) 1995, 53 F.3d 298, certiorari denied 116 S.Ct. 306, 516 U.S. 916, 133 L.Ed.2d 210.  Indians  6.5;  Indians  6.8


Indian Child Welfare Act (ICWA) was applicable to abandonment and adoption hearings where child fell within ICWA's definition of "Indian child" and hearings fell within ICWA's definition of "child custody proceedings." Matter of Adoption of Baade, S.D.1990, 462 N.W.2d 485.  Indians  6.6(1);  Indians  6.10


Where Indian mother gave her residence as Pueblo, there was no evidence in record to indicate that mother was not resident and domiciliary of Pueblo, baby child then assumed mother's domicile and became domiciliary of Pueblo;  thus, jurisdiction over adoption proceedings was exclusive in tribal court and, therefore, children's court lacked jurisdiction.  Matter of Adoption of Baby Child, N.M.App.1985, 700 P.2d 198, 102 N.M. 735.  Domicile  5; Indians  6.10


25 U.S.C.A. § 1903, 25 USCA § 1903



Approved 07-28-05                                  

Home  |   Search  |   Disclaimer  |   Privacy Statement  |   Site Map