Since its enactment in 1978, the Indian Child Welfare Act (ICWA) has been put into place to protect Native children from being wrongfully separated from their families and communities. This landmark legislation gave Tribal courts more authority over specific custody matters such as foster care, termination of parental rights, and adoptions. It's important to note that while ICWA is a critical resource for Indian families, it does not apply to every case with Native children. In this blog post, we will dispel some of the common misconceptions about ICWA and divorce proceedings.
The ICWA Reviewed
The Indian Child Welfare Act (ICWA) was enacted in 1978 to protect Native children from being wrongfully taken from their families and communities. It provides Tribal courts with more authority over specific custody matters, such as foster care, termination of parental rights, and adoptions.
The Basics
The ICWA is a critical resource for Indian families. By understanding the basics of ICWA, you can ensure that your family is taking full advantage of its protections.
First and foremost, the ICWA applies only to Native children. If one or both of the parents are not Native, the act does not apply. In addition, the child must meet at least one of the following criteria in order to be considered Indian under ICWA:
Be a member of a federally recognized Tribe
Be eligible for membership in a federally recognized Tribe
Be the biological child of a member of a federally recognized Tribe
Have at least one Indian parent
If the child meets any of these criteria, then the ICWA applies and Tribal courts have jurisdiction over custody matters. If you are in the process of divorcing and have questions about whether or not ICWA applies to your situation, it's best to consult with an attorney who specializes in Tribal Law, like the team at Circling Eagle Law.
Does The ICWA Focus on Divorce?
It's important to understand that the Indian Child Welfare Act (ICWA) does not apply to divorce proceedings, such as custody battles between parents. This is a common misconception, as many people believe that ICWA gives Tribal courts more authority over custody matters in divorces. However, this is simply not the case.
The stipulations created by the ICWA are more focused on the unethical removal of Native and Indigenous children from their homes and communities and placement into foster or adoptive homes.
If you are going through a divorce and have questions about whether or not ICWA applies to your situation, it's best to consult with an attorney who specializes in Indian law. With their help, you can ensure that your family is taking full advantage of the protections provided by ICWA.
What Does This Mean For Native Americans Going Through Divorce?
While it is crucial to have the protections provided by the ICWA, it does not necessarily address the unique issues that Native families may face when going through custody proceedings. However, it is still possible to work with a Tribal Law attorney who is familiar with established family dynamics and culture to ease the custody process.
Native American parents will still have to work to find out what custody and visitation arrangements best suit their needs. There are multiple ways of reaching an agreement, and what route is chosen depends on your unique circumstances. For example, it may be possible for a family to reach an agreement through mediation, negotiating the terms of custody schedules.
Attorneys Providing Comprehensive Services
At Circling Eagle Law we have extensive experience in both family and Tribal law, providing our clients with comprehensive legal services. We understand the intricacies of Tribal law, including the acts in place that provide protection to families and communities as a whole. If you have any questions, don’t hesitate to contact our team today.
Call us at (701) 401-7404 to speak with our attorneys about Tribal and family law today.
