Indian Child Welfare Act
ICWA at CDSS
Currently, the Department is taking the lead on ICWA regulation development that ensures the integration of California law AB 3176 into MPP Division 31 Regulations for county social worker and probations placement staff.
AB 3176 Signed into Law
California law confirms that it is in an Indian child's best interest to enhance and protect the child's connection to their tribe and tribal community. This protection occurs by complying with the minimum federal standards set forth in the Indian Child Welfare Act (ICWA). In 2016, the federal government issued comprehensive federal ICWA regulations. While many of the changes reflect implementation approaches already developed in California, modification to California law was necessary to bring it into full alignment. California has 109 federally recognized tribes and the largest Native American population in the nation, comprised of both California Native Americans and Native Americans affiliated with tribes throughout the nation. In this challenging environment, to eliminate ambiguity and at the urging of tribal stakeholders, the Department prioritized efforts to collaborate on legislation conforming state law to the federal regulations. On September 27, 2018, Governor Brown signed AB 3176 into law. AB 3176 adds several important definitional clarifications, including: active efforts, reason to know a child is an Indian child, child custody proceedings, and emergency proceedings. The legislation clarifies county and state actions to determine tribal exclusive jurisdiction, and how to properly handle cases in which exclusive tribal jurisdiction exists, clarifies notice requirements, and clarifies when inquiry begins and what it requires for caseworkers to identify and verify whether a child meets the definition of an Indian child. Link
CDSS Supports the most appropriate placement and care for American Indian children
The California Department of Social Services (CDSS) is reinforcing its commitment to collaborate with California tribes to ensure the most appropriate placement and care for American Indian children in California. Link
History and Perspective
The Indian Child Welfare Act (ICWA) was enacted in 1978 in response to a crisis affecting American Indian and Alaska Native children, families, and tribes. Studies revealed that large numbers of Native children were being separated from their parents, extended families, and communities by state child welfare and private adoption agencies.
The intent of Congress under ICWA was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902).
ICWA sets federal requirements that apply to state child custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe.
Among the protections for Native children, ICWA requires caseworkers to make several considerations when handling an ICWA case, including:
1.Providing active efforts to the family;
2.Identifying a placement that fits under the ICWA preference provisions;
3.Notifying the child’s tribe and the child’s parents of the child custody proceeding; and
4.Working actively to involve the child’s tribe and the child’s parents in the proceedings.
Although progress has been made as a result of ICWA, out-of-home placement still occurs more frequently for Native children than it does for the general population. Despite the advances achieved since 1978, ICWA’s protections are still needed.
To address these uncertainties and improve implementation of ICWA, the Bureau of Indian Affairs (BIA) provided additional federal guidance, some for the first time since enactment of the law. In December 2016, the BIA published revised guidelines entitled Guidelines for State Courts in Indian Child Custody Proceedings. These are non-legally binding and were the first revisions since 1979.That same month, the first-ever comprehensive federal regulations addressing ICWA implementation for state courts’ and public and private agencies became effective. These regulations provide clarification of many of the key requirements under ICWA and are legally binding.