This benchbook provides guidance for family court judges in complying with the federal Indian Child Welfare Act (ICWA), which was enacted in 1978 in response to the high percentage of Indian children being removed from their families, often unwarranted, to be placed by non-Tribal public and private agencies in non-Indian foster homes and institutions.
The rationale for this federal legislation was that states were often failing to recognize the essential Tribal relations of Indian people and the cultural and social standards that prevail in Indian communities and families. In 2003, the National Council of Juvenile and Family Court Judges (NCJFCJ) published checklists to guide judges and judicial officers in implementing ICWA. The checklists have been used by courts across the nation. The Department of Interior, Bureau of Indian Affairs (BJA) promulgated federal regulations governing ICWA in 2016. These binding regulations provide additional definitions, timelines, and required judicial findings that must be made on the record. The statute and regulations together create the minimum federal requirements for Indian families. States may increase protections and requirements, but may not decrease them. This bench book is designed for a national audience, only addressing federal requirements under the ICWA. Judges should become familiar with higher protections for Indian children and families in their particular jurisdiction. Following a presentation of the basic provisions of the ICWA, the benchbook addresses ICWA minimum requirements for the preliminary protective hearing, the adjudication hearing, the disposition hearing, the review hearing, the permanency planning hearing, the termination of parental rights, and the adoption hearing.
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