Resource Letter:
For Judges and Attorneys Handling Child Protective Services Cases
November 19, 2020
Highlighting ICWA During Native American Heritage Month
Please read below for an ICWA overview, a link to national events related to Native American Heritage Month, and an announcement about the January 2021 ICWA Summit hosted by DFPS.

As Native American Heritage Month is celebrated this November, it is fitting to also celebrate and highlight a pivotal moment in child welfare law - the 1978 passage of the Indian Child Welfare Act (ICWA). The original law, along with the 2016 implementation of the binding Final Rule and Guideline updates, has been lauded as the “gold standard” of child welfare law. In passing the law, Congress recognized “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” 25 U.S.C. § 1902.

ICWA provides courts the opportunity to address the disproportionate number of Native American (NA) and Alaska Native (AN) families involved with the child welfare system by establishing the legal priority to connect and maintain cultural ties to one’s tribe.

Texas has three federally recognized tribes: the Alabama-Coushatta Tribe of Texas, the Kickapoo Traditional Tribe of Texas, and the Ysleta del Sur Pueblo. However, it is important to note that 67 percent of individuals who self-identify as NA or AN alone, and 78 percent of those who self-identify as NA or AN alone or in combination with some other race, live outside of reservations or AN villages (United States Census Bureau 2012). As a result, ICWA should be appropriately applied even if a court is not located near a tribe.

As courts continue to consistently implement ICWA, some key components of the law to remember are:
  • Defining an Indian Child: ICWA only applies to an Indian child who is an unmarried person under age 18; who is either a member of an Indian tribe or eligible for membership; and who is also the biological child of a member. 25 U.S.C. § 1903(4). Under the law, an Indian tribe is one of the more than 500 federally recognized tribes in the United States. 
  • Reason to Know: If a court has reason to know a child is an Indian child then ICWA applies unless and until it is shown otherwise that the child is not an Indian child as defined by law. Only a tribe can determine citizenship. 25 C.F.R. § 23.107(b-c).
  • At the Adversary, Status, and each Permanency Hearing, Texas courts are required to ask the parties whether the child or child's family has Native American heritage and identify any Native American tribe with which the child may be associated. Tex. Fam. Code §§ 262.201(f), 263.202(f-1), and 263.306 (a-1)(3).
  • Required Notice: Notice to a child’s tribe is required for “each child-custody proceeding.” Defined as any action except an emergency hearing that may result in a foster care placement, termination of parental rights, pre-adoptive placement, or adoptive placement, this means any Suit Affecting the Parent Child Relationship filed by DFPS requires notice. 25 U.S.C. § 1912(a); 25 C.F.R. § 23.2.
  • Active Efforts: There must be evidence of “active efforts” to alleviate the cause for removal, taking into account the prevailing social and cultural conditions and way of life of the Indian child’s tribe. 25 U.S.C. § 1912(d); 25 C.F.R. §23.120. “Active efforts” is generally construed to require more than the “reasonable efforts” otherwise required for children in foster care.

For more information on the application of ICWA, please refer to the Texas Child Protection Law Bench Book and Bench Cards. The National Council of Juvenile and Family Court Judges Indian Child Welfare Act Judicial Benchbook is another excellent resource.
Upcoming Events:
In honor of Native American Heritage Month, the American Bar Association (ABA) Section on Civil Rights and Social Justice and the Diversity and Inclusion Center are sponsoring two signature events in November for lawyers and the general public. Information on the events can be found on the ABA's website.

On Tuesday, November 24 at 10:00 a.m. PST, the National Council of Juvenile and Family Court Judges (NCJFCJ) will host an Open Space Call on Active Efforts: A Native American Heritage Month Discussion of the Spirit of ICWA. This will be an opportunity for all judicial officers and court stakeholders to discuss the following topics:
  • Understanding the history of ICWA and Active Efforts
  • The importance of ongoing collaboration with tribal communities
  • The importance of understanding tribal families
  • Ways to implement Active Efforts
SAVE THE DATE: Texas ICWA Summit January 22, 2021
Hosted by the Department of Family and Protective Services and in partnership with the Alabama-Coushatta Tribe of Texas, Kickapoo Traditional Tribe of Texas, and Ysleta del Sur Pueblo, the Children’s Commission is pleased to announce that a Texas ICWA Summit will be held on Friday, January 22, 2021. The one-day summit will provide the legal community, caseworkers, and other child protection stakeholders with an in-depth training on the history of ICWA and the critical components of the law. Registration information will be sent out closer to the event date.
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For a complete list of Resource Letters, please visit the Children's Commission web page. Information provided by the Children’s Commission should not be read as a commentary by the Supreme Court of Texas or any other court. The Children’s Commission website is not equipped to facilitate dialogue or conversation about matters related to the information in this communique. For more information about the Children’s Commission, please visit our website.