Definitions

L.1 Regulation

23.2 …Active efforts means affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with his or her family. Where an agency is involved in the child-custody proceeding, active efforts must involve assisting the parent or parents or Indian custodian through the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan. To the maximum extent possible, active efforts should be provided in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child’s Tribe and should be conducted in partnership with the Indian child and the Indian child’s parents, extended family members, Indian custodians, and Tribe. Active efforts are to be tailored to the facts and circumstances of the case and may include, for example:

(1) Conducting a comprehensive assessment of the circumstances of the Indian child’s family, with a focus on safe reunification as the most desirable goal;

(2) Identifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining such services;

(3) Identifying, notifying, and inviting representatives of the Indian child’s Tribe to participate in providing support and services to the Indian child’s family and in family team meetings, permanency planning, and resolution of placement issues;

(4) Conducting or causing to be conducted a diligent search for the Indian child’s extended family members, and contacting and consulting with extended family members to provide family structure and support for the Indian child and the Indian child’s parents;

(5) Offering and employing all available and culturally appropriate family preservation strategies and facilitating the use of remedial and rehabilitative services provided by the child’s Tribe;

(6) Taking steps to keep siblings together whenever possible;

(7) Supporting regular visits with parents or Indian custodians in the most natural setting possible as well as trial home visits of the Indian child during any period of removal, consistent with the need to ensure the health, safety, and welfare of the child;

(8) Identifying community resources including housing, financial, transportation, mental health, substance abuse, and peer support services and actively assisting the Indian child’s parents or, when appropriate, the child’s family, in utilizing and accessing those resources;

(9) Monitoring progress and participation in services;

(10) Considering alternative ways to address the needs of the Indian child’s parents and, where appropriate, the family, if the optimum services do not exist or are not available;

(11) Providing post-reunification services and monitoring.

L.1 Guidelines

See section E of these guidelines.

L.2 Regulation

23.102 …Agency means a private State-licensed agency or public agency and their employees, agents or officials involved in and/or seeking to place a child in a child custody proceeding.

L.2 Guidelines

The rule defines “agency” as an organization that performs, or provides services to biological parents, foster parents, or adoptive parents to assist in, the administrative and social work necessary for foster, preadoptive, or adoptive placements. The definition includes non-profit, for-profit, or governmental organizations including those who may assist in the administrative or social work aspects of seeking placement. An “agency” may also be assisting in the legal aspects of seeking placement, but the definition does not include attorneys or law firms, standing alone, because as used in the rule, “agencies” are presumed to have some capacity to provide social services. Attorneys and others involved in court proceedings are addressed separately in various provisions in the rule. This comports with the statute’s broad language imposing requirements on “any party” seeking placement of a child or TPR.

L.3 Regulation

23.2 …Child-custody proceeding.

(1) “Child custody proceeding” means and includes any action, other than an emergency proceeding, that may culminate in one of the following outcomes:

(i) Foster-care placement, which is any action removing an Indian child from his or her parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;

(ii) Termination of parental rights, which is any action resulting in the termination of the parent-child relationship;

(iii) Preadoptive placement, which is the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; or

(iv) Adoptive placement, which is the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.

(2) An action that may culminate in one of these four outcomes is considered a separate child-custody proceeding from an action that may culminate in a different one of these four outcomes. There may be several child-custody proceedings involving any given Indian child. Within each child-custody proceeding, there may be several hearings. If a child is placed in foster care or another out-of-home placement as a result of a status offense, that status offense proceeding is a child-custody proceeding.

L.3 Guidelines

ICWA requirements apply to an action that may result in one of the placement outcomes, even if it ultimately does not. For example, ICWA would apply to an action where a court was considering a foster-care placement of a child, but ultimately decided to return the child to his parents. Thus, even though the action did not result in a foster-care placement, it may have culminated in such a placement and, therefore, should be considered a “child-custody proceeding” under the statute. The definition further makes clear that a child custody proceeding that may culminate in one outcome (e.g., a foster-care placement) would be a separate child-custody proceeding from one that may culminate in a different outcome (e.g., a TPR), even though the same child may be involved in both proceedings.

This definition explicitly excludes emergency proceedings from the scope of a child-custody proceeding, as emergency proceedings are addressed separately.

This definition includes proceedings involving status offenses if any part of the proceeding results in the need for out-of-home placement of the child.

Adoptions that do not involve TPR, for example, Tribal customary adoptions, are included within the definition of “child-custody proceeding” as either a “foster-care placement” or an “adoptive placement,” because these terms, as defined, do not require TPR.

See 25 U.S.C. 1903. See  23.103 and section B.2 of these guidelines. See, also, 81 FR 38799 (June 14, 2016) for additional information on this definition.

L.4 Regulation

23.2 …Continued custody means physical custody or legal custody or both, under any applicable Tribal law or Tribal custom or State law, that a parent or Indian custodian already has or had at any point in the past. The biological mother of a child has had custody of a child.

Custody means physical custody or legal custody or both, under any applicable Tribal law or Tribal custom or State law. A party may demonstrate the existence of custody by looking to Tribal law or Tribal custom or State law.

L.4 Guidelines

The definition of “continued custody” includes custody the parent or Indian custodian “has or had at any point in the past” as there is no evidence that Congress intended temporary disruptions (e.g., surrender of the child to another caregiver for a period) not to be included in “continued custody.” The definition also clarifies that the parent or custodian may have physical and/or legal custody under any applicable Tribal law or Tribal custom or State law. These definitions clarify that physical and/or legal custody may be defined by applicable Tribal law or custom, or by State law, but do not establish an order of preference among Tribal law, Tribal custom, and State law because custody may be established under any one of the three sources.

L.5 Regulation

23.2 Domicile means:

(1) For a parent or Indian custodian, the place at which a person has been physically present and that the person regards as home; a person’s true, fixed, principal, and permanent home, to which that person intends to return and remain indefinitely even though the person may be currently residing elsewhere.

(2) For an Indian child, the domicile of the Indian child’s parents or Indian custodian or guardian. In the case of an Indian child whose parents are not married to each other, the domicile of the Indian child’s custodial parent.

L.5 Guidelines

This definition reflects the common-law definition, which acknowledges that a person may reside in one place but be domiciled in another.

Note that, while the rule does not define “residing” or “residence,” the Department interprets “residence” to mean the location where an individual is currently living but which is not their permanent, fixed home to which they intend to return – for example, a child might be domiciled with his or her parents but residing at a boarding school or university, or with family members while his or her parents are away for an extended period of time.

L.6 Regulation

23.2 …Emergency proceeding means and includes any court action that involves an emergency removal or emergency placement of an Indian child.

L.6 Guidelines

See section C of these guidelines.

L.7 Regulation

23.2 …Extended family member is defined by the law or custom of the Indian child’s Tribe or, in the absence of such law or custom, is a person who has reached age 18 and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.

L.7 Guidelines

Additional categories of individuals may be included in the meaning of the term if the law or custom of the Indian child’s Tribe includes them. “Extended family member” is not limited to Tribal citizens or Native American individuals.

L.8 Regulation

23.2 …Hearing means a judicial session held for the purpose of deciding issues of fact, of law, or both.

L.8 Guidelines

In order to demonstrate the distinction between a hearing and a child-custody proceeding, the definition of “child-custody proceeding” explains that there may be multiple hearings involved in a single child-custody proceeding.

L.9 Regulation

23.2 …Indian means any person who is a member of an Indian tribe, or who is an Alaska Native and a member of a Regional Corporation as defined in section 7 of the Alaska Native Claims Settlement Act, 43 U.S.C. 1606.

L.9 Guidelines

Note that this term includes only those individuals who are members of “Indian Tribes” (i.e., federally recognized Tribes) and members of Alaska Native Claims Settlement Act regional corporations.

L.10 Regulation

23.2 …Indian child’s Tribe means:

(1) The Indian Tribe in which an Indian child is a member or eligible for membership; or

(2) In the case of an Indian child who is a member of or eligible for membership in more than one Tribe, the Indian Tribe described in 23.109.

L.10 Guidelines

Note that while a child may meet the definition of “Indian” through more than one Tribe, ICWA establishes that one Tribe must be designated as the “Indian child’s Tribe” for the purposes of the Act.

L.11 Regulation

23.2 … Indian custodian means any Indian who has legal custody of an Indian child under applicable Tribal law or custom or under applicable State law, or to whom temporary physical care, custody, and control has been transferred by the parent of such child. An Indian may demonstrate that he or she is an Indian custodian by looking to Tribal law or Tribal custom or State law.

L.11 Guidelines

This definition allows for consideration of Tribal law or custom.

L.12 Regulation

23.2 …Indian foster home means a foster home where one or more of the licensed or approved foster parents is an “Indian” as defined in 25 U.S.C. 1903(3).

L.12 Guidelines

Note that a foster home does not meet the definition of an “Indian foster home” merely by virtue of an Indian child being present in the home; rather, one of the foster parents must meet the definition of “Indian.”

L.13 Regulation

23.102 … Indian organization means any group, association, partnership, corporation, or other legal entity owned or controlled by Indians or a tribe, or a majority of whose members are Indians.

L.13 Guidelines

This term is used in 23.107(c), regarding reason to know the child is an Indian child, and 23.131, regarding foster-care placement preferences (the last preferred placement is an institution for children approved by an Indian Tribe or operated by an Indian organization which has a program suitable to meet the child’s needs).

L.14 Regulation

23.2 …Indian tribe means any Indian tribe, band, nation, or other organized group or community of Indians federally recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village as defined in section 3(c) of the Alaska Native Claims Settlement Act, 43 U.S.C. 1602(c).

l.14 Guidelines

Note that “Indian Tribe” under ICWA includes only federally recognized Tribes. States may have a more inclusive definition of “Indian Tribe” that includes State-recognized or other groups; however, the Federal ICWA statute and rule do not apply to those groups.

L.15 Regulation

23.2 … Involuntary proceeding means a child-custody proceeding in which the parent does not consent of his or her free will to the foster-care, preadoptive, or adoptive placement or termination of parental rights or in which the parent consents to the foster-care, preadoptive, or adoptive placement under threat of removal of the child by a State court or agency.

L.15 Guidelines

See discussion in section B of these guidelines regarding ICWA’s applicability to involuntary proceedings.

L.16 Regulation

23.2 …Parent or parents means any biological parent or parents of an Indian child, or any Indian who has lawfully adopted an Indian child, including adoptions under Tribal law or custom. It does not include an unwed biological father where paternity has not been acknowledged or established.

L.16 Guidelines

Note that the rule does not provide a Federal standard for acknowledgment or establishment of paternity. Many State courts have held that, for ICWA purposes, an unwed father must make reasonable efforts to establish paternity, but need not strictly comply with State laws.58

58 See 81 FR 38796 (June 14, 2016) for a discussion of case law articulating a constitutional standard regarding the rights of unwed fathers.

L.17 Regulation

23.2 …Reservation means Indian country as defined in 18 U.S.C 1151 and any lands, not covered under that section, title to which is held by the United States in trust for the benefit of any Indian Tribe or individual or held by any Indian Tribe or individual subject to a restriction by the United States against alienation.

L.17 Guidelines

Note that this definition includes land that is held in trust but not officially proclaimed a “reservation.”

Indian country generally includes lands within the boundaries of an Indian reservation, dependent Indian communities, Indian allotments, and any lands that are either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation. This definition does not include Alaska Native Villages unless they fall within one of these categories.

L.18 Regulation

23.2 …Status offenses mean offenses that would not be considered criminal if committed by an adult; they are acts prohibited only because of a person’s status as a minor (e.g., truancy, incorrigibility).

L.18 Guidelines

See also the definition of “child custody proceeding,” which includes proceedings where a child is placed in foster care or another out-of-home placement as a result of a status offense. If the placement is based upon a status offense, ICWA provisions apply, regardless of whether the State is a PL-280 State.

A placement, including juvenile detention, resulting from status offense proceedings meets the statutory definition of “foster-care placement” and such placement is therefore subject to ICWA.

L.19 Regulation

23.2 …Tribal court means a court with jurisdiction over child-custody proceedings and which is either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian Tribe, or any other administrative body of a Tribe vested with authority over child-custody proceedings.

L.19 Guideline

Note that the definition includes any other administrative body of a tribe vested with authority over child-custody proceedings in recognition that a Tribe may have other mechanisms for making child-custody decisions (e.g., the Tribal council may preside over child-custody proceedings).

L.20 Regulation

23.2 …Upon demand means that the parent or Indian custodian can regain custody simply upon verbal request, without any formalities or contingencies.

L.20 Guidelines

This definition is important for determining whether a placement is a “foster-care placement” (because the parent cannot have the child returned upon demand) under23.2, and therefore subject to requirements for involuntary proceedings for foster-care placement. Placements where the parent or Indian custodian can regain custody of the child upon demand are not subject to ICWA.

Examples of formalities or contingencies are formal court proceedings, the signing of agreements, and the repayment of the child’s expenses.

L.21 Regulation

23.2 …Voluntary proceeding means a child-custody proceeding that is not an involuntary proceeding, such as a proceeding for foster-care, preadoptive, or adoptive placement that either parent, both parents, or the Indian custodian has, of his or her or their free will, without a threat of removal by a State agency, consented to for the Indian child, or a proceeding for voluntary termination of parental rights.

L.21 Guidelines

The rule refers to “both parents” to allow for situations where both parents are known and reachable. If a parent refuses to consent to the foster-care, preadoptive, or adoptive placement or TPR, the proceeding would meet the definition of an “involuntary proceeding.” Nothing in the statute indicates that the consent of one parent eliminates the rights and protections provided by ICWA to a non-consenting parent.

The definition specifies that placements where the parent agrees to the placement only under threat of losing custody is not “voluntary,” by including the phrase “without a threat of removal by a State agency.” The rule also specifies that a voluntary proceeding must be of the parent’s or Indian custodian’s free will to clarify that a proceeding in which the parent agrees to an out-of-home placement of the child under threat that the child will otherwise be removed is not “voluntary.”

The distinguishing factor for a “voluntary proceeding” is the parent(s) or Indian custodian’s consent, not whether they personally “chose” the placement for their child.

L.22 Regulation

23.2

Act means the Indian Child Welfare Act (ICWA), Pub. L. 95-608, 92 Stat. 3069, 25 U.S.C. 1901 et seq.

Assistant Secretary means the Assistant Secretary – Indian Affairs, the Department of the Interior.

Bureau of Indian Affairs (BIA) means the Bureau of Indian Affairs, the Department of the Interior.

Secretary means the Secretary of the Interior or the Secretary’s authorized representative acting under delegated authority.

State court means any agent or agency of a state, including the District of Columbia or any territory or possession of the United States, or any political subdivision empowered by law to terminate parental rights or to make foster care placements, preadoptive placements, or adoptive placements.

Tribal government means the federally recognized governing body of an Indian tribe.

L.22 Guidelines

Note that while the regulation often refers to the “Secretary” of the Interior, generally, the Secretary has delegated authority for day-to-day matters arising under ICWA to BIA officials (e.g., BIA ICWA Specialist, BIA social services workers).