IV. INDIAN CHILDREN: THE INDIAN CHILD WELFARE ACT AND THE MINNESOTA INDIAN FAMILY PRESERVATION ACT
ICWA (25 U.S.C. § 1901) and MIFPA (MINN. STAT. §§ 260.751 to 260.781) are laws designed to protect Indian children from being arbitrarily removed from their families and tribes. ICWA is a federal law. MIFPA is a Minnesota statute. These laws protect the rights of Indian children to be raised in their own culture and protect a tribe's right to its future in its children.
All juvenile, family, and probate court actions discussed in this manual involving an Indian child's placement outside of the home of a parent are covered by the ICWA and the MIFPA. These laws apply even if the caregiver is a relative and a member of the same tribe as the child.
A child who is eligible for membership in a tribe is considered an "Indian child." It is each tribe's right to decide who is and who is not a member of the tribe. The law defines Indian tribes as those tribes recognized by the Federal Bureau of Indian Affairs. For purposes of ICWA, Alaska Native villages also qualify as tribes.
ICWA and MIFPA have specific procedures that must be followed and legal standards that apply in all cases involving an Indian child's placement outside the parental home. For instance, the parent or Indian custodian and the child's tribe must receive notice, by registered mail, at least ten days before the proceeding. 25 U.S.C. § 1912(a). The Indian custodian and the child's tribe have the right to intervene at any point in the proceedings. 25 U.S.C. § 1911(c). The court may not order placement unless it finds by clear and convincing evidence that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. 25 U.S.C. § 1912(e). Evidence must include testimony by an expert in tribal child-rearing customs. In some situations, the case may be transferred to a tribal court. 25 U.S.C. § 1911(b).
The ICWA sets out special timetables and rules governing the parents' consent to an adoption and their right to revoke consent. The child's tribe must be given notice of the adoption proceeding.
ICWA mandates preferences for placement and adoption, which apply in the absence of good cause to the contrary. 25 U.S.C. § 1915. In adoption, preference is given to a member of the child's extended family; other members of the child's tribe; or other Indian families. In other placements, preference is given to a member of the extended family; a foster home licensed, approved, or specified by the Indian child's tribe; an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs. 25 U.S.C. § 1915. These placement preferences must be followed unless the court finds "good cause."
The laws are quite complex and this manual cannot give detailed information about all of its provisions. However, if the caregiver knows, or has reason to suspect that the child has American Indian heritage or ancestry, the caregiver should tell his/her attorney so that the attorney can comply with the law's requirements. Many problems can arise later if these laws are not followed, including the possible invalidation of the kinship care order if the court finds that ICWA was violated.