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