What is the Indian Child Welfare Act and How Does it Work?
The Indian Child Welfare Act (ICWA) is a federal statute that was enacted in 1978 to protect Indian children from removal from their homes and culture. The Act establishes minimum procedural safeguards which create a number of legal protections against the state’s removal of an Indian child from their home. ICWA applies in cases involving the placement of children outside the home, such as foster care placement, adoption, and in cases of child neglect or abuse. It does NOT apply to custody proceedings in divorce cases or placements of delinquents for acts that would be criminal if committed by an adult. ICWA was designed to work with Federal and State law so that Indian children receive the highest level of protection available to them under law. This means that if State law has stricter standards for removing a child than ICWA does, then State law will apply.
Today, the procedural safeguards in ICWA must be applied before removing an Indian child from their home.They are designed to ensure that if removal is necessary, Tribes’ rights are protected. If Indian children are removed, the protections within ICWA mean they are more likely to be placed with family members or in culturally appropriate homes. For more information about placement, please see this guide by the Native American Rights Fund.
Protections afforded by ICWA are seen in the additional considerations caseworkers have to make when handling an ICWA case. These considerations include providing active efforts (a higher legal standard) to reunify the family rather than the reasonable efforts required by State law, working actively to involve the child’s parents and their tribe in the proceedings, and requiring testimony of a qualified expert witness before terminating parental rights. When the termination of parental rights is suggested, ICWA protects the rights of the family by requiring evidence beyond a reasonable doubt that a child would be subject to serious emotional or physical damage if they stayed with their parent(s).This evidence must include testimony by a qualified expert witness who can speak to the best interests of the child and who has knowledge of social and cultural practices in the tribe in order to diminish the risk of any cultural bias.
What is the Michigan Indian Family Preservation Act and How Does it Work?
In 2012, Michigan adopted its own version of the ICWA as a state law: MIFPA. Please consider checking out these resources for more information about ICWA and the Michigan Indian Family Preservation Act:
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