The Indian Child Welfare Act (ICWA) was enacted in 1978. The substantive placement preferences in ICWA require that Indian children, once removed, be placed in homes that reflect their traditional Indian tribal values (25 U.S.C. Sec.1915), absent "good cause" to the contrary. The ICWA currently applies to four types of Indian child custody proceedings:

1. Foster care placements when the parent or Indian custodian (defined as an Indian person with custody of the child under tribal or state law or who has the child pursuant to a parental placement) cannot regain custody upon demand  (25 U.S.C. 1903(1)). The latter provision exempts ICWA application from voluntary religious or school placements, as well as voluntary placements with private or public agencies where the parent or custodian can regain custody at any time.
   
2. Termination of certain parental rights of the Indian child's parents or the custodial rights of the child's Indian custodian, including stepparent adoption proceedings and delinquency proceedings that lead to an attempt to terminate parental rights.
   
3. Pre-adoption placements.
   
4. Adoption placements that lead up to and culminate in the adoption of an Indian child. It imposes an obligation on both public and private adoption agencies to comply with its provisions.

The ICWA does not apply to custody disputes between divorcing parents. The court must first determine that the child is an "Indian child" which ICWA defines as a child who is a member of a federally recognized Indian tribe, or is eligible for membership in such a tribe and the biological child of a member (25 U.S.C. 1903(4).

Exclusive tribal jurisdiction exists in cases involving Indian children who are domiciled on Indian reservations (25 U.S.C. 1911(a)) and/or where the child has been made a ward of the tribal court. These types of proceedings must be adjudicated through the tribal court of the relevant tribe. Concurrent jurisdiction with a tribal court and a state court may exist if the Indian child lives off the reservation or is domiciled off the reservation.

In the situation where the case remains in state court, a party attempting to achieve the involuntary foster-care placement of an Indian child must establish, by showing clear and convincing evidence, that: (1) an active effort has been made to provide remedial and rehabilitative services to the child's family and that it was unsuccessful, and (2) continued custody by the parent(s) or Indian custodian likely will result in serious emotional or physical damage to the child.

Brenda J. Bellonger, attorney and President of NAILS, has published an article in the Colorado Lawyer: "Colorado Takes A Promising Step Toward Full Compliance With The Federal Indian Child Welfare Act".  This article provides both a brief history and an explanation of the provisions of the federal Indian Child Welfare Act (ICWA).  Additionally, it addresses recent additions to the Colorado Children's Code designed to assist in implementation and compliance with ICWA requirements.
(PDF file, 32K)

Federally Recognized Tribes
Federal Register: November 25, 2005 (Volume 70, Number 226)
(PDF file, 106K)

The Permanency Planning for Indian Children Project provides mediation services in child welfare cases, where the Indian Child Welfare Act ("ICWA") 25 U.S.C. 1901 et. seq. applies or where the court case affects an American Indian Child.

The Project objectives & benefits are:

• Providing mediation services in Indian child welfare cases in Colorado, at no cost to indigent Indian Families.
• Maintaining information and researching issues and resources available for parties involved in child placement proceedings.
• Assisting in the determination of whether the child is an enrolled or enrollable Indian child, thereby requiring application of the ICWA.
• Achieving consensus of parties on cultural issues and needs of child.
• Adherence to ICWA placement and removal standards.
  

Mediation is provided by Martina Gauthier, (Menominee/Winnebago). Ms. Gauthier was trained by CDR and Associates in Boulder, Colorado and has been practicing since March 2001.

You may download and print a copy of the application, release of information, and agreement to mediate forms.

Please note that forms must be signed before being valid.

Application Form
(PDF file, 98K)

Release of Information Form
(PDF file, 50K)

Agreement to Mediate Form
(PDF file, 82K)

All PDF files on this page and throughout our web site requires adobe acrobat reader. If you need Adobe Acrobat reader, you may download a free version from this link.

I hope this page helps with your concerns and questions concerning the application of the ICWA. While this page is by no means a complete summary of the ICWA provisions and application in legal proceedings, it will provide a path for your research relative to the ICWA. If you have questions, please contact NAILS at bellonger@gmail.com, or by phone: (720) 840-5438.