Minimum Standards
ICWA sets the minimal Federal standards for nearly all Indian child custody proceedings, including adoption, voluntary and involuntary termination of parental rights, and removal and foster care placement of Indian children, but excluding divorce and child delinquency proceedings. ICWA provides that state courts have no jurisdiction over the adoption or custody of Indian children residing within their own tribal reservation. An "Indian child" is “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”
ICWA applies to a "child custody proceeding" involving an Indian child. The term "child custody proceeding" involves: (i) "foster care placements", where the child has been placed in a foster home, and the parent cannot have the child returned upon demand, but where parental rights have not been terminated; (2) terminations of parental rights; (3) "preadoptive placements", which means placing the child in a foster home after the termination of parental rights, but before or instead of an adoption; and (4) adoptions.
ICWA does not cover child custody hearings during divorce proceedings. Nor does ICWA cover cases of child delinquency where the child has done something that would be considered a crime if done by an adult. Because Indian tribes play a major part in the upbringing of Indian children that is significantly different than that of the parents, the ICWA gives important jurisdictional powers to Indian tribes in order to preserve the Indian culture. Tribal courts hold either exclusive jurisdiction or concurrent jurisdiction dependent on several factors.
Read more about this topic: Indian Child Welfare Act, Overview of ICWA, Jurisdiction
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