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Excerpted From: Johnathan R. Baldauf, Protecting Native American Culture, Children, and Your Practice, 63-JUL Advocate (Idaho) 26 (June/July, 2020) (13 Footnotes) (Full Document)


JohnathanRBaldaufThe Indian Child Welfare Act (“ICWA”) is a federal law enacted in 1978 that sets standards designed to “protect[ ... ] the best interests of Indian children and to promote the stability of Indian tribes and families.” The ICWA generally applies to Indian children who may be removed from the custody of their parents. The law protects children who are eligible for membership in federally-recognized tribes and ensures that tribes have priority in placement and is “addressed to the concern that 'an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.”’ The heightened requirements of the ICWA are designed to maintain the culture of the tribe.

Because the ICWA does not apply to custody disputes between parents or family members, many family law practitioners are not familiar with the law. However, any practitioner dealing with adoption, guardianships, or the termination of parental rights should ensure that they have reviewed their case to determine if the ICWA might apply.

While the ICWA only applies to involuntary proceedings, ensuring its requirements are met in voluntary proceedings can make a clear record and can address the concerns the ICWA was designed to address. This article will help practitioners understand the ICWA, when it applies, and provide some practical advice on how to navigate it.

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As this article demonstrates, when handling a situation where parental rights may be terminated, it's recommended that you determine if any of the children or their parents are members of a tribe. This threshold determination may require additional research including direct contact with a tribe to determine if a potentially eligible person is a member. If your case involves a tribal member, the ICWA has specific requirements that must be met. Hopefully, this article will provide you with a way path under the ICWA.

Johnathan R. Baldauf is a founding partner of Baldauf Masser, LLP, a small Boisebased firm focused on family law and criminal defense.

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