ICWA Protects the Interest and Rights of Indian Children
Video Transcribed: My name is Brian L. Jackson, I’m a Dads’ rights attorney in Tulsa, Okla. And today we’re going to talk about the Indian Child Welfare Act. What is it? What effects can it have on your custody case?
The Indian Child Welfare Act is a federal law that was passed to protect the interest and rights of Indian children and Indian parents and Indian tribes in their children. One of the major areas where it can affect your rights is that any time you have children of Indian descent where the Indian Child Welfare Act comes into play, then you have a situation of dual jurisdiction in custody litigation and domestic litigation.
For example, if your children are of Indian descent, either because you’re of Indian descent or the mother is of Indian descent, then in a divorce action, you can take it up in the state district court, but it could also be potentially taken up in Indian court, either if your tribe has its own court system, or else in what’s called the CFR courts, which are the Bureau of Indian Affairs courts. It could be taken in either one and if the case has been filed in district court, then there is a procedure to have it removed to an Indian court.
Where should you file it? Well, that is something you might want to talk to a lawyer about, and a lawyer who is familiar with the judges. Sometimes it’s better to take it up in district court, sometimes it might be better to take it up in Indian court, but that’s something that really takes somebody who knows the judge to figure that out.
Another way that the Indian Child Welfare Act might affect you as well, as a father, is, let’s suppose mom is out of the picture, but you have a relative, either somebody on your side or somebody on mom’s side, that wants to pursue guardianship. Indian Child Welfare Act creates a much higher burden of proof for them in order to be able to take the child away.
Basically, the law requires them to prove by clear and convincing evidence that active efforts were made to prevent the breakup of the Indian family, that is to prevent the child from being separated from its mother and father, or in your case its father, and that those active efforts have failed, and that it is necessary to remove the child to protect the child’s welfare. It’s a higher burden of proof than in a traditional guardianship.
And you may have an ally in the tribe as well, that you can talk to their child welfare services. But it can give you a little bit of a stronger position as a father if you’re fighting a third-party family member and trying to block guardianship. Now obviously if you have a situation where there are circumstances where guardianship is seriously necessary, you can still lose that argument, but it is a higher burden of proof.
Indian Child Welfare Act also creates a hierarchy of preferred placements. It’s preferred that the child be placed with a family member who is tribal or with a tribal placement of some other kind over a nontribal placement. And there are tribes that enforce that pretty stringently. So again, it could be potentially helpful to you if you find yourself in that situation.
That rule also applies, by the way, in deprived court, where I would sincerely hope you never find yourself. But if you do find yourself in deprived court, it is, and again, it does create a higher burden of proof on the individual seeking to take the child away, or the state in the case of a deprived case.
So we’ve been talking about the Indian Child Welfare Act. If you have questions about this or any other area of family law or domestic law that might affect your rights as a father or as a man, then you should go to dads.law immediately and talk to one of our lawyers. We’d be glad to help you out. My name is Brian L. Jackson, I am a Tulsa father’s rights attorney, and we’ve been talking about the Indian Child Welfare Act.