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Child and Family Services Policy Manual: Legal Procedure
Indian Child Welfare Act
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Introduction
The Indian Child Welfare Act is a mandatory federal law and
shall be implemented accordingly.
The underlying premise of the Act is that Indian tribes have
sovereign rights and legal powers with respect to Indian
children and, as governments, have a vital legal role to play in
determining whether Indian children should be separated from
their families and culture. The Act recognizes the authority of
tribal and state courts to make decisions regarding the welfare,
care, custody and control of Indian children.
ICWA has two primary provisions. First, it sets up requirements
and standards for child-placing agencies to follow in the
placement of Indian children. It requires, among other things,
providing remedial, culturally appropriate service for Indian
families before a placement occurs; notifying tribe(s) regarding
the placement of Indian children and, when placement must
occur, it requires that children be placed in Indian homes.
Failure to follow these procedures can result in invalidation of
the court’s action. Second, the Act provides for Indian tribe(s)
to reassume jurisdiction over child welfare matters, including
developing and implementing juvenile codes, juvenile courts,
tribal standards, and child welfare services.
Today, most Indian tribe(s)--including all tribes in Montana--are
in a position to provide at least some services to their own
children. Each reservation in Montana has a tribal court and
tribal codes which guide the provision of child welfare services.
In addition, the tribes have entered into contracts and
agreements with the State of Montana to further clarify the role
of tribal and state government in child protective services and
ICWA compliance for Native American children both on and off
the reservation. State Child Protection Specialists should be
aware of the provisions of these contracts when working with
Native Americ