Indian Child Welfare Act (ICWA)

In 1978, Congress passed the ICWA under Public Law 95-608, November 8, 1978. ICWA was passed to:

• To protect the best interest of Indian children,
• To promote the stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children from their families, and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and
• To provide assistance to Indian tribes in the operation of children and family service program.

Minimum Standard

ICWA imposed minimum federal standards for state child custody court proceedings, which include voluntary, and involuntary foster care placements, termination of parental rights, and pre-adoptive and adoptive placement involving Indian Children. Standards include:

Note: Each Indian tribe determines their own membership

Clarification to the ICWA Requirements

SB 678 did not create new requirements but rather incorporates the federal ICWA into California. SB 678 clarifies that ICWA applies to the following child custody proceeding:

• Proceeding under W&I Code section 300 et seq. and under W&I Code sections 601 and 602 et seq. in which the child is at risk of entering foster care or is in the foster care, including detention hearings, jurisdiction hearings, disposition hearings, review hearings, hearings under W&I Code 366.26 and subsequent hearings affecting the status of the Indian child;
• Proceeding under Family Code section 3041 pertaining to the award of custody to a non-biological parent;
• Proceeding under the Family Code resulting in adoption or termination of parental rights; and
• Proceeding listing in Probate Code section 1459.5 pertaining to guardianships or conservatorship.

Note: The SW or PO are required to determine if the child is meets the requirement of an “Indian Child”. When it is not noted and the FC EW discovers the child may have Indian ancestry the FC EW must immediately notify the SW or PO.

Federally Recognized Indian Tribes

Federally recognized Indian tribes have a special legal and political relationship with the United States government. This relationship is referred to as government to government relationship. The state publishes a listing of federally recognized Indian tribes with tribal information obtained from the BIA located at http://www.childsworld.ca.gov/res/pdf/cdsstribes.pdf.

In an effort to recognize and support the sovereign right of Indian nation to provide for the welfare of their Indian children, California enacted AB 1525. This legislation allows for the CDSS and California Indian tribes to negotiate and enter into agreements concerning the provision of child welfare services to Indian children by their respective tribes and allows tribes to access to Title IV-E funding for provisions of these services.

Direct funding under Title IV-E is not available to tribes. In order to access Title IV-E funds, federal regulations require tribes to enter into cooperative agreements with their respective states. Unless otherwise approved by the ACF, tribes will be held to the same service delivery, foster care standards and fiscal reporting requirements as the California counties. For ease of identification, tribes that have active Tribal/State Agreements are known as “Title IV-E tribes”.

Note: Although the Indian tribe is Title IV-E approved, this does not automatically determine the Indian child’s federal eligibility. The Indian child must meet same federal requirements for federal Title IV-E AFDC-FC funding as with any type of foster care placement. For more information regarding federal funding. Refer to Federal Eligibility Determination.

Non-Federally Recognized Tribes

Non-federally recognized tribes are not under the ICWA requirements. In the case where a non-federally recognized tribe request that their placement recommendation be considered, such recommendation may be considered by the county (DFCS) but the placement would still be subject to county licensing and/or relative approval standards. In addition, a court may permit a non-federally recognized tribe from which the child is descended to participate as a formal party in child welfare proceeding.

Non-Federally recognized tribes cannot received Title IV-E or federal funding.

Urban Indian Children

Counties in urban areas such as Santa Clara County, commonly encounter Indian children from out of state or out of the area tribes. The ICWA placement preferences and noticing requirement are still applicable for SWs/POs. SWs/POs are encouraged to work with local Indian organizations.

Interstate Placements

California adopted the ICPC through enacting agreed upon requirements and standards between receiving and sending states when there are out of state placement of children. Counties must following the ICPC protocols for Indian children, except as specified below:

• The Indian child is being transferred to a tribal court’s jurisdiction; and
• Where County and Tribally approved homes are in another state.

Note: For more information regarding the ICPC process, refer to Medi-Cal for Children Entering California, Receiving Federal FC from Another State Aid Code 46.

Juvenile Probation Department (JPD)

When a JPD Indian ward is placed in a foster care placement (relative, foster homes, group homes, foster family agencies, or treatment facilities) ICWA policy would apply because the placement in foster care is based on the needs of the child and not based on the crime he or she committed.

Eligible Placements

Eligible placements include state licensed or approved facilities and any home of a relative or non-relative extended family member located on or off the reservation, which is licensed, approved or specified by the Indian child’s tribe and a criminal background has been completed.

Tribally Approved Home (TAH)

A TAH is a home licensed or approved by an Indian child’s tribe/tribal agency (or designated tribal organization) for foster or adoptive placement of an Indian child. TAHs are not subject to state approval standards. Tribes have the independent authority to approve foster homes using their own socially and culturally appropriate standards and are not subject to RFA requirements.

Note: If there is a sibling set which includes a child that is not a member of the tribe approving the TAH, such as a non-Indian child, the home must be approved under RFA standards.

To confirm that a tribe has approved a home, the county SW/PO should request written confirmation from the tribe. Depending on the tribal practice, this may include council resolutions, letters or emails from the tribe identifying the prospective foster or adoptive parents and confirming that the tribe has approved the home. Indian children placed in a TAH or a pending TAH are eligible for foster care payments.

Foster Care Payments

A TAH is entitled to the same foster care rates as RFA homes, including any SCI and Special Needs.

Effective July 1, 2019, EC Funding shall be paid to an emergency caregiver, who is pending approval as a TAH, with whom an Indian child or NMD has been placed on an emergency basis. While an “Emergency Assistance Application” (EA 1) is required to obtain EC Funding for a home pending TAH, a Resource Family Approval Application” form (RFA-01A) application is not required for this population. Refer to FC Handbook Chapter 21.16 for EC Funding information.

Note: The compelling reason provision only applies for caregivers pending RFA approval and not caregivers pending TAH approval.

Non-Minor Dependents

Eligibility for EFC under AB 12 are not affected by a youth’s status as an Indian youth. However, there are unique circumstances regarding the Indian youth that impact the content of their case plans. The following factors are:

• Continued application of the ICWA in the EFC Program,
• Indian youth’s right to withdraw from ICWA standards after 18,
• Participation plan requirement,
• Placement options for Indian youths,
• Funding and eligible criteria for Indian youths, and
• Indian youth under a Tribal Title IV-E Program.

These circumstances are described below and for further information regarding the EFC program, refer to Extended Foster Care (EFC) Benefits.

Continued Application of the ICWA in the EFC Program

Indian youth who remains under the jurisdiction of the state dependency court, and who meets the criteria of a NMD, will continue to have the ICWA standards apply to his or her case. If a tribe has been involved in an Indian youth’s case as a minor the tribe will continue to be involved in the NMD’s EFC case plan.

If an Indian NMD has exited foster care but has chosen to re-enter, ICWA will apply if he or she has previously been determined to be covered by ICWA or if identified as covered by ICWA upon re-entry.

Indian Youth’s Right To Withdraw From ICWA Standards After 18

Withdrawing from being defined an “Indian child” does not require or mean disenrollment from the Indian youth’s tribe, nor does it affect an Indian youth’s tribal membership. Indian youths should not be encouraged or pressured to withdraw from ICWA. The consequences of disenrollment from tribal membership can be lifelong, and Indian youths could be adversely affected in their tribal rights and other entitlements.

The NMD must be informed of the implications of withdrawing from ICWA that include the following:

• There will be less or no involvement by their tribe in their case plan, and
• The youth’s tribe would no longer have a formal role in court proceedings.

Should an Indian youth at a later date, request again to be defined an Indian child, ICWA standards would apply and the tribe would assume a formal role in any related court proceedings.

Participation Plan Requirement

As with all other youths seeking participation in the EFC Program, an Indian youth as a condition of participation must sign the Mutual Agreement (SOC 162) and meet the participation requirements under the EFC program. Refer to Authority for Placement/Court Dependency. The only addition is the case plan must be done in collaboration with the Indian youth and in consultation with the youth’s tribe.

Placement Options and Re-Entry For Indian Youths

Placement options and the process for re-entry are the same as youths in the EFC. In addition, Indian NMDs may also be placed in a SILP that is approved in the collaboration with the youth’s tribe. As a best practice, it is suggested that DFCS/JPD consider a MOU or other form of a written agreement between the county and the tribe specifying the county’s responsibility for supervision and monthly contact with the youth.

Funding And Eligibility Criteria For Indian NMDs

Indian youths must continue to meet the financial AFDC-FC eligibility requirements as all other NMDs to receive payment.

Note: For participation requirements, refer to Education and Employment Participation Conditions.

Indian youths may present some unique issues as it pertains to per capita distributions made for tribal members. Depending on a tribe’s distribution criteria, tribally based financial distributions (e.g. gaming or trust funds) may become available to the youth upon reaching the age of majority. However, it is possible the funds may not be available. Tribal distributions may differ and must be reviewed by the assigned SW/PO on a case by case bases. When the funds are not available to the youth they cannot be included as a resource.

PAYMENTS EXCLUDED OR EXEMPT FROM CONSIDERATION AS INCOME:

• Exempted funds distributed per capita or held in trusts for members of any Native Indian tribe,
• Exempted as income the funds of Native American Indian tribes including interest earned from investments income derived from funds when they have been:
  • Distributed from the Secretary of the Interior on a per capital basis; or
  • Held in trust by the Secretary of the Interior.
• Exempts up to $2,000 in any 12 consecutive month period, the income of individual Indians when such income is derived from individually owned interest in trusts or restrict lands.
• Exempts distribution to a household, individual Native or descendant of a Native when received from a Native Corporation established pursuant to the ANCSA. 
• Exempt distribution include:
  • Cash (including cash dividends on stock received from a Native Corporation) to extent is does not exceed $2,000 total person per annum, stock, a partnership interest, land or interest in land, and interest in a settlement trust.

There are additional federal laws that may preclude consideration of certain types of distributions. The youth’s financial situation will need to be assessed on a case by case bases.

NMD Indian Youth Under A Tribal Title IV-E Program

Some tribes have entered into Title IV-E agreements with the State of California which enable the tribes to establish child welfare programs that can draw down federal Title IV-E funding. These programs are authorized to establish and provide EFC Programs consistent with the federal requirements under the AB 12 program.

Title IV-E Federal Funds

Direct federal funding is not available to tribes. In order to access federal funds, federal legislation requires tribes to enter into cooperative agreements with their respected states. Placements in tribally approved homes under the jurisdiction of court dependency or juvenile court and supervised by DFCS or JPD, qualify for Title IV-E foster care maintenance payments as long as the home is on or near an Indian reservation. The home must also provide 24-hour out-of-home care for Indian children.

In the case of a tribe with a Title IV-E Agreement and where the tribe has accepted jurisdiction of the case, the county court would dismiss the action and transfer the case to the Title IV-E tribe. The Title IV-E funding would follow the Indian child, when Title IV-E eligible.

Rates and Eligibility and Documentation

Rates established for ICWA children and youths are the same rates established for all other foster care placements.

Documentation for ICWA children follow the same placement forms as with all other foster care placements.

Related Topics

Overview