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children_silhouetteThe Indian Child Welfare Act of 1978 (ICWA) (92 Stat. 3069, 25 U.S.C. §§1901-1963), was the product of rising concern in the mid-1970s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes. 25 U.S.C. §1901. The Act “seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society.” House Report, at 23, U.S. Code Cong. & Admin. News 1978, at 7546. It does so by establishing “a Federal policy that, where possible, an Indian child should remain in the Indian community,” and by making sure that Indian child welfare determinations are not based on “a white, middle-class standard which, in many cases, forecloses placement with [an] Indian family.” Id. at 24.

The ICWA applies to all “child custody proceedings involving an “Indian child”. 25 U.S.C. §§1903, 1911. The ICWA defines “child custody proceeding” as including foster care placements, termination of parental rights proceedings, preadoptive placements and adoptive placements. 25 U.S.C. §1903, subd. 1 [i]-[iv]. An “Indian child” is defined as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. §1903 subd. 4.

In Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), the U.S. Supreme Court found that the children involved were Indian children as defined by Indian Child Welfare Act §1903(4) although they had never lived in an Indian home or on an Indian reservation. It held that even though the children were born off of the reservation, they were domiciled on the reservation within the meaning of the ICWA’s exclusive tribal jurisdiction because the domicile of an Indian child is that of the mother if the child is born out of marriage, and federal law preempts state law as to the definition of domicile.

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