Indian Child Welfare Act Was Passed Federally
Video Transcribed: The Indian Child Welfare Act, how does it play in a grandparents’ rights case? Hi, I’m Tulsa Grandparents Rights Attorney, Justin Mosteller, and I’m going to spend a little bit of time with you today talking about the Indian Child Welfare Act and how it can apply in various grandparents’ rights cases.
Now, the Indian Child Welfare Act was passed federally, as a response to a situation in the 70s where Indian children were being removed from Indian families and placed with white families for no good reason. And for that reason, Congress acted and passed this law that has been adopted by all 50 states that basically says that there are special procedures that are in place for dealing with Indian families.
Basically, Indian children need to be placed in an Indian placement; Indian compliant placement. That means in the context of guardianship, the application of ICWA, as it’s called, can really complicate a case.
Specifically, you have to, in addition to giving notice to both of the parents, actually have to notice the Bureau of Indian Affairs and the specific tribe involved and you have to bring an expert witness from the tribe to testify about the cultural practices of the tribe and how they might be involved in the case.
The idea is that if a parent is simply following a cultural tradition in the tribe, that cannot be grounds for removing the child from that parent and placing them outside of their immediate family.
In the context of adoption, ICWA also generates some additional procedures. The tribe has to be notified. They have to be a participant in the adoption proceeding and you may actually have to go into a tribal court for the adoption itself, depending on the tribe and on your situation.
In just a grandparent visitation case, ICWA is not really a factor because ICWA only applies when you’re talking about custody of the child and taking custody away from the parents, placing them with someone else.
So a grandparents’ rights case, you’re not actually going for custody, you’re going for a visitation right. So for that reason, ICWA doesn’t really apply in that case, but depending on the situation, it is proper to have an attorney that knows what they’re doing when it comes to ICWA. It does come up very often, especially here in Oklahoma.
As an attorney, I’m licensed in the Muscogee (Creek) Nation court system, as well as the Oklahoma court system. That gives me kind of an advantage in dealing with some of these ICWA laws because I’ve seen them applied by the tribes themselves and I’ve worked a lot with attorneys general from different tribes and in making sure that the ICWA is followed and upheld.
You’ll find that in Tulsa County, it is regularly followed to the letter. In some of the smaller counties in Northeast Oklahoma that I practice in, sometimes the court has to be reminded that ICWA applies and that the requirements of ICWA should be followed.
Hopefully, this has answered some of your questions. ICWA can be a really deep topic. There’s a lot of issues that get involved with ICWA. If you find yourself in a case where your grandchildren are eligible to enroll or are enrolled as a tribal citizen, ICWA will apply in your case and you probably need somebody that’s comfortable working with it in your corner. If you have any more questions, feel free to seek counsel from our office to speak with a Grandparents Rights Attorney in Tulsa, we’d be happy to help.