A brief overview of the Indian Child Welfare Act and how it applies in Guardianship proceedings in California
The fourth Friday of each September is Native American Day in California. The day was designated in California as a day to celebrate Native Americans and their heritage. Much of California History begins with the settlement of the Spanish and ignores the fact that many tribes called California home for centuries before the Spanish ever stepped foot on this continent. Many of those tribes still exist in California today and have managed to claw back from the years of oppression and outright harm caused by the government’s policies.
In the late 1800s until the 1950s, the United States Government actively sought to destroy Native American culture and heritage. Government authorities forced Native American children to attend boarding schools 100s of miles away from their families at very young ages. Once in the hands of government agents, their hair was forcibly cut, their names were changed, and they were forced to give up their ties to their heritage, language, and families. After many of the boarding schools were finally shut down, the Child Welfare League of America worked with the Bureau of Indian Affairs on the Indian Adoption Project. The Indian Adoption Project worked to adopt Native American children into Caucasian families in a further effort to harm Native American Families.
Family Law and Native Americans Rights Today
In 1978, the Federal Government enacted the Indian Child Welfare Act (ICWA). This was to protect future generations of Native American children from centuries of abuse and attempts to eradicate Native American culture and heritage. The ICWA sets standards for the “removal of Indian children and placement of such children in homes which will reflect the unique values of Indian culture.” (25 U.S. C. 1902) Indian Child is defined as a child that is either a member of a tribe or eligible for membership of a tribe, and one of the biological relatives is a member of a tribe.
The ICWA applies to children who are members of a tribe, eligible for triable membership, and/or a biological child of a tribal member that are under the age of 18 that are involved in child custody proceedings. In short, if an “Indian Child” is found to be in a situation where Child Protective Services (CPS) would typically intervene, CPS and the courts must strictly follow the ICWA’s policies and procedures. If a non-Native American person seeks a guardianship or conservatorship of an “Indian Child” without consent from the child’s parents, Indian custodian, or the tribe, they may not be able to become a guardian.
In the United States, Tribes are sovereign nations that share a government relationship with the state and federal governments in addition to other Tribal nations. Indian tribes may make laws regarding domestic relationships and children of tribal members.
Indian Child welfare Act in California
The ICWA applies in voluntary and involuntary custody placements. In California, the ICWA plays a role in juvenile, family, and probate matters. In guardianship proceedings, if a child is an “Indian child,” then the ICWA will apply. Often, a potential guardian relative may seek custody of an Indian Child. If the potential guardian is not Indian as defined by the ICWA there are strict rules under the ICWA that must be followed before a court can grant a guardianship of the child.
If a party seeks a guardianship and knows that the child is an “Indian child” and does not disclose that information to the court, they can be subject to sanctions. Sanctions could be monetary, legal, or both.
If you are seeking guardianship of an “Indian Child,” or more information on family law and Native Americans Rights, it is important to consult with an attorney to understand the child’s rights under the ICWA and the additional procedures that the ICWA has in place to protect children.