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What You Might Want to Know about the Indian Child Welfare Act (ICWA)


Adoptions and child welfare proceedings in Colorado, to the extent they involve native American Indian children, must follow federal law, the Indian Child Welfare Act of 1978 (ICWA). The Act was passed by Congress to address concerns that large numbers of Indian children were being separated from their families and tribes through adoption or foster care placement, usually in non-Indian homes.

For any child custody proceeding in Colorado that could result in foster care placement of an India child or termination of parental rights to an Indian child (such as through an adoption), ICWA grants an Indian child's tribe the right to intervene at any stage in a state court proceeding. There are notice requirements and standards of proof that must be followed by a court whenever Indian children are involved in dependency and neglect, foster care placement or adoption proceedings. These requirement and standards are unique to cases involving children of native American Indian heritage.

ICWA was recently challenged on constitutional grounds in Texas. Notably, the United States Supreme Court rejected the challenge, and upheld the law, stating:

“In the usual course, state courts apply state law when placing children in foster or adoptive homes. But when the child is an Indian, a federal statute—the Indian Child Welfare Act—governs. Among other things, this law requires a state court to place an Indian child with an Indian caretaker, if one is available. That is so even if the child is already living with a non-Indian family and the state court thinks it in the child’s best interest to stay there…. The Act thus aims to keep Indian children connected to Indian families.”

(JUSTICE BARRETT writing for the Court on 6/15/2023 in HAALAND v. BRACKEEN)

If you are involved, or about to be involved, in a legal matter regarding the care or custody of an Indian child, you should speak with an attorney at The Harris Law Firm who can advise you how the law may impact your rights and those of your child.

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