Indian Child Welfare Act (ICWA)
Congress enacted the Indian Child Welfare Act in 1978. Oklahoma implemented their version, which is stricter than the federal version(10 O.S. §§ 40-40.9), in 1982. When Native American children are removed from their parent’s custody, ICWA and Oklahoma ICWA (OICWA) require proper notice to the child’s Tribe. Generally in a juvenile case, ICWA and OICWA require the District Attorney’s office to notice the tribe.
To define “Native American child,” ICWA recognizes the following possible definitions:
- the child is enrolled and has tribal enrollment card,
- the parent(s) is/are enrolled in a Tribal Nation and the child is eligible for enrollment,
- or the Tribal Nation states that the child is of Native American descent
If the tribal affiliation is unknown, ICWA requires notification to the Bureau of Indian Affairs that a child has been placed in custody and is believed to be a Native American child. The tribe may then determine if the child is a Native American child and whether they will intervene.
ICWA and OICWA require ICWA compliant placement of children. Compliant placements include the following:
- A direct family member and/or kinship placement,
- A member of the child’s Tribe or Nation,
- A member of any other Tribe or Nation, or
- A non-tribal foster care placement
Some deprived actions are transferred from juvenile court to tribal court. The transfer can occur at the parent(s) and/or Tribe’s request. Both parents must agree to the transfer. If the Tribal Court accepts the transfer, the Tribe will assume jurisdiction and the juvenile court will dismiss the action. Indicators of ICW custody can include:
- Court hearings
- eKIDS/KIDS research
- Notified by a customer
When this occurs, review the Foster Care Inquiry Tool to determine if foster care maintenance payments are being made. If so, the case should remain open for collection of current support and current support will be retained (E/F). The worker will send a Finance Action Request to update the case (CHB) to prevent future PS2 interface. The case type will be updated to the same case type that displayed prior to ICW placement (E or F). If not, but there are past due balances, the case should be moved to 06 or 08 status (whichever is appropriate). If there are no past due balances, the case should be closed.