State Statutes Related to the Indian Child Welfare Act

Human Services

Key Takeaway

A federal law governing the removal and out-of-home placement of American Indian children, the Indian Child Welfare Act establishes standards for placing Indian children in foster and adoptive homes.

The Indian Child Welfare Act (ICWA) of 1978 is a federal law that governs the removal and out-of-home placement of American Indian children. The law was enacted after recognition by the federal government that American Indian children were being removed from their homes and communities at a much higher rate than non-Native children. ICWA established standards for the placement of Indian children in foster and adoptive homes and enabled tribes and families to be involved in child welfare cases.

Check out NCSL's ICWA Summary for more.

Several states have enacted legislation related to the Indian Child Welfare Act in varying degrees. Six states (Iowa, Michigan, Minnesota, Nebraska, Oklahoma and Washington) have enacted their own Indian Child Welfare Act, adopting provisions from the federal ICWA in whole or in part. Other states have adopted some provisions, most commonly, the definition of "Indian child" and the notification requirements. Still, others simply have references to ICWA, including compliance requirements.

For more information about the Indian Child Welfare Act, including a new final rule to clarify and strengthen implementation of the Act's requirements, and other related child welfare issues in Indian country, see NCSL's Indian Child Welfare Resources page.

Below are state statutes related to strengthening, enhancing or complying with the federal Indian Child Welfare Act in states.

Recent State Legislative Enactments

2019 AK HR 7. Adopted. Tribal Child Welfare Compact. Urges the governor to continue to fully implement the state Tribal Child Welfare Compact and build ongoing partnerships between state and tribal governments.

2019 AZ H 2570. Chapter No. 232. Missing Indigenous Women. Establishes a study committee on missing and murdered indigenous women and girls.

2019 CA A 686. Chapter No. 2019-434. Indian Children. Requires the Judicial Council to establish a rule of court that would authorize the use of telephonic or other remote access by an Indian child’s tribe in proceedings where the Indian Child Welfare Act of 1978 apply.

2019 ND S 2051. Chapter No. 131. Nonparent Custody and Visitation. Enacts the Uniform Nonparent Custody and Visitation Act; relates to grandparental rights of visitation; provides requirements for an order of custody or visitation; provides for the presumption for parental decisions.

2019 OK H 1074. Chapter No. 37. Children. Requires the Department of Human Services to verify applicability of the Indian Child Welfare Act within three (3) months of the child being taken into custody.

2019 NM S 251. Chapter No. 163. Foster Children Tuition and Fee Waivers. Relates to children; amends a section of chapter 21, article 1 NMSA 1978 to provide foster children greater access to tuition and fee waivers at state educational institutions.

2019 NM HM 51. Adopted. Tribal Customary Adoption. Requests the Children, Youth and Families Department, in consultation and collaboration with New Mexico's Indian nations, tribes and pueblos, to develop a tribal customary adoption plan, policies and procedures and to make legislative recommendations for the implementation of tribal customary adoption in state courts.

2018 CA A 880. Act No. 2018-801. Tribal Nation Grant Fund. Establishes the Office of the Governor's Tribal Adviser. Establishes the Tribal Nation Grant Panel and the Tribal Nation Grant Fund Program. Requires the Tribal Adviser to appoint elected tribal leaders to serve on the Panel before a specified date. Requires the Gambling Control Commission to prepare and post on its website a report detailing the status of grants and other distributions made from the Fund for the previous fiscal year.

2018 LA H 182. Act No. 296. Children's Code. Revises provisions relating to the Indian Child Welfare Act, relates to child custody proceedings, provides that a preliminary investigation of abuse or neglect shall include an inquiry as to whether there is a reason to know that a child is an Indian child, revises provisions relating to hearings, provides guidance for reasons to know a child is an Indian child under the federal Indian Child Welfare Act, provides guidance for inquiries.

2018 ME H 824. Act No. 411. Child Protective Services. Revises provisions relating to the standard of the best interest of the child, expands the definition of relative to include the adoptive parent of a child's siblings, and extended family members of an Indian child, provides to place children removed from the custody of their parents with as many of their siblings as possible, establishes Department responsibilities regarding kinship and sibling placements.

2018 MI S 616. Act No. 56. Child Protection Law. Makes changes to child protection law by allowing tribal entities or tribal social services representatives to have access to the state electronic central registry.

2018 MN S 3143. Act No. 164. Human Services. Relates to human services, postpones the expiration date of the Traumatic Brain Injury Advisory Committee, the American Indian Advisory Council, the Formulary Committee, and the American Indian Child Welfare Advisory Council.

2018 OR H 4009. Act No. 89. Protective Custody Without Court Order. Heightens standard for taking a child into protective custody without a court order, permits application for protective custody order by affidavit, declaration or sworn oral statement, permits submission of an affidavit or declaration by electronic transmission, permits reinstatement of parental rights under certain circumstances.

2017 AZ S 1108. Act No. 330. Cash Assistance and Children. Allows cash assistance for an otherwise eligible dependent child during the period in which the dependent child is in the legal custody of the Department of Child Safety and is placed in unlicensed kinship foster care with an unrelated adult. Defines child only case, for purposes of cash assistance, to include a case in which the eligible dependent child is in the legal custody of a tribal court or a tribal child welfare agency located in the state.

2017 MN H 1. Act No. 1. Financing and Operation of State and Local Government. Establishes a new aid program for counties and tribes for out-of-home placement costs of children under the Indian Child Welfare Act (ICWA). Establishes a process for the commissioner of Human Services to review whether a county is in compliance with ICWA and the Minnesota Indian Family Preservation Act.

2017 OK S 322. Act No. 81. Indian Child Custody Proceedings. Requires notice of review hearings for the custody of an Indian child, and a copy of the petition, to be sent to the parents or to the Indian custodians, if any, and to the tribe that is or may be the tribe of the Indian child, and to the appropriate Bureau of Indian Affairs area office, by regular first-class mail.

2017 TX S 1758. Act No. 937. Requirements for the Court in Permanency Hearings. Requires a court, at each permanency hearing for a child under the care of DFPS held before a final order is rendered, to ask all parties present whether the child or the child's family has a Native American heritage and identify any Native American tribe with which the child may be associated. Requires a court at such a hearing held before and after a final order is rendered to review the permanency progress report of a child whose permanency goal is another planned permanent living arrangement.

2017 UT S 91. Act No. 209. Native American Child Welfare Amendments. Defines Indian child, Indian country and Indian tribe the same as the federal Indian Child Welfare Act. Clarifies that full faith and credit of an Indian tribe's licensure of a foster home extends to homes located on both state lands and Indian country. Requires the division to cooperate and share relevant information with an Indian tribe. Authorizes the division to provide Indian tribe access to the Management Information System.

2017 WA H 1814. Act No. 269. Involuntary Child Custody Proceedings. Concerns notification requirements for the Department of Social and Health Services regarding involuntary child custody proceedings. Requires the petitioning party notify the parents or guardians by certified mail addressed to the tribal agent designated by the Indian child's tribe or tribes for receipt of Indian child welfare act notices, as published by the Bureau of Indian Affairs in the federal register.

State Statutes
State	Statute
Alabama	Ala.Code 1975 § 12-15-314 (Dependency and Termination of Parental Rights- dispositions for dependent children- kinship)
Alaska	Alaska Stat. §§ 25.23.060, 173 (Adoption- consent to adoption, Indian child adoption reports) Alaska Stat. § 25.24.150 (Divorce and Annulment- judgments for custody) Alaska Stat. § 47.14.100 (Juvenile Programs and Institutions- Care of Children- duties of department- agreements with Alaska Native Villages) Alaska Stat. § 47.70.020 et. seq. (Interstate Compact for the Placement of Children)
Arizona	Ariz. Rev. Stat. §§ 8-105.01, 8-106, 8-515.05, 8-535 (Adoption and Termination of Parent-Child Relationship -racial preference, notification) Ariz. Rev. Stat. § 8-817 (Protective Services- initial screening) Ariz. Rev. Stat. §§ 8-841, 8-872, 8-874 (Dependent Children- dependency petition, preliminary orders, permanent guardianship) Ariz. Rev. Stat. § 8-453 (Compliance with Fed. ICWA)
California	Cal.Fam.Code §§ 170, 175, 180, 185 (Indian children- definitions, eligible membership in more than one tribe, legislative findings, notification, tribal participation at hearings) Cal. Fam. Code § 3041 (Custody of Children- custody hearing) Cal. Fam. Code §§ 7660.5, 7907.3 (Parent and Child Relationship- adoption proceedings under ICWA, Interstate Compact on Placement of Children) Cal. Fam. Code §§ 8606.5, 8616.5, 8619.5 (Adoption- consent, post-adoption contract agreements, return of custody) Cal. Fam. Code §8620(g) (Civil penalties) Cal.Welf. & Inst.Code §§ 224 to 224.3, 305.5, 306.6, 317, 361, 361.2, 361.31, 361.4, 366.26, (Delinquents and Wards of Juvenile Court- legislative findings, definitions, eligible membership in more than one tribe, notice, Indian child inquiry, removal from parents, transfer to tribal court, tribal participation at hearings, appointment of counsel, grounds for removal, placement considerations, termination of parental rights) Cal. Welf. & Inst. Code §361.7(b) (Active efforts) Cal. Welf. & Inst. Code §224.6(e) (Qualified expert witness) Cal.Welf. & Inst.Code § 266.24 (Tribal Customary Adoption) Cal.Welf. & Inst.Code §§ 11401, 165074 (Public Social Services- foster care eligibility, out of home placement) Cal Prob. Code §§ 1449, 1459, 1459.5, 1460.2, 1475, 1500.1 (Guardianship- definitions, Indian child custody proceedings, eligible membership in more than one tribe, application of federal law, notification, appointment of counsel, nomination of guardian) Cal.Health & Safety Code § 1505 (Licensing provisions- exemptions)
Colorado	Colo. Rev. Stat. § 19-1-126 (Compliance with the federal Indian Child Welfare Act-inquiry, notification, determination, transfer to tribal court) Colo. Rev. Stat. § 19-2-513 (Juvenile Justice System- entry into system) Colo. Rev. Stat. § 19-3-212 (Dependency and Neglect-notification) Colo. Rev. Stat. § 24-60-1801 to 1803 (Interstate Compact on Placement of Children)
Delaware	Del. Code Ann. tit. 31, § 381 (Interstate Compact for the Placement of Children)
Florida	Fla. Stat. § 39.0137 (Proceedings Related to Children- federal law applicability) Fla. Stat. § 63.087 (Adoption-Proceeding to terminate parental rights) Fla. Stat. § 409.408 (Interstate Compact for the Placement of Children)
Idaho	Idaho Code § 32-1704 (De Facto Custodian Act- commencement of proceedings)
Indiana	Ind. Code tit. 31 § 28-6-1 (Interstate Compact for the Placement of Children)
Iowa	Iowa Code §§ 232B.1 to 232B.14 (Iowa Indian Child Welfare Act)
Kansas	Kan Stat. Ann. §§ 38-2202 to 2203 (Care of Children- definitions, jurisdiction, federal law applicability)
Louisiana	La. Rev. Stat. Ann. § 13:1840 (Uniform Child Custody Jurisdiction and Enforcement- federal law applicability)
Maine	Me. Rev. Stat. Ann. tit. 22 §§ 4008, 4062 (Child Protection- records, payments) Me. Rev. Stat. Ann. tit. 22 §§ 7805, 8101 (Facilities for Children and Adults- tribally licensed facilities, children’s homes definitions)
Michigan	Mich. Comp. Laws §§ 712B.1 to 41 (Michigan Family Preservation Act)
Minnesota	Minn. Stat. §§ 260.751 to 260.835 (Minnesota Indian Family Preservation Act) Minn. Stat. § 256.01- (Commissioner of Human Services-powers and duties) Minn. Stat. § 257.0651 (Children Custody- federal law applicability) Minn. Stat. § 257C (De Facto Custodian and Interested Third Parties- federal law applicability) Minn. Stat. §§ 259.29, 259.52, 259.57, 259.58, 259.67 (Adoption- policy, father’s adoption registry, hearing, communication or contract agreement, adoption assistance program) Minn. Stat. § 260.012 (Duty to ensure placement prevention and family reunification, reasonable efforts- active efforts apply to Indian children) Minn. Stat. §§ 260.851, 260.93 (Interstate Compact on the Placement of Children) Minn. Stat. §§ 260B.007, 260B.151, 260B.163, 2 (Delinquency- definitions, notice, hearing, federal law applicability) Minn. Stat. §§ 260C.001, 260C.007, 260C.101, 260C.151, 260C.151, 260C.152, 260C.163, 260C.168, 260C.175, 260C.178, 260C.193, 260C.201, 260C.212, 260C.215, 260C.301, 260D.01 (Child Protection- intent, definitions, jurisdiction, notice, hearing, federal law applicability, taking child into custody, emergency removal hearing, dispositions, children in placement, termination of parental rights, voluntary foster care for treatment)
Mississippi	Miss. Code Ann. § 93-27-104 (Uniform Child Custody Jurisdiction and Enforcement Act- applicability to Indian tribes)
Missouri	Mo. Rev. Stat. § 452.715 (Child Custody- applicability of federal law)
Montana	Mont. Code Ann. § 40-6-405 (Newborn Protection Act- temporary protective custody) Mont. Code Ann. § 41-3-109 (Child Abuse and Neglect- Proceedings subject to Indian Child Welfare Act) Mont. Code Ann. §§ 41-3-205, 301, 422, 423, 427, 432, 437, 444, 609 (Child Abuse and Neglect- confidentiality disclosure exceptions, emergency protective services, burden of proof, permanency plan, service, show cause hearing-order, temporary disposition findings, appointment of guardian- financial subsidies, criteria for termination) Mont. Code Ann. § 42-2-604 (Adoption- Proceedings subject to Indian Child Welfare Act) Mont. Code Ann. §§ 42-4-103, 203, 209, 42-5-101, 107 (Adoption- petition for termination of parental rights, duties of placing parent, information to be filed, post placement evaluation, petition for adoption, best interest of child) Mont. Code. Ann. § 52-2-117 (Child Welfare Services- Indian child welfare specialist)
Nebraska	Neb. Rev. Stat. §§ 43-1501 to 1516 (Nebraska Indian Child Welfare Act) Neb. Rev. Stat. §§ 43-101-104, 111, 111.01, 113, 130-132, 138, 143 (Adoption- children eligible for adoption, home study, hearing notice, consent exceptions, effect as to natural parents, court powers, records, request for information, release of information) Neb. Rev. Stat. §§ 43-245-247, 263 (Juvenile Code- terms, Nebraska ICWA applicability, jurisdiction, summons, rights of parties) Neb. Rev. Stat. § 43-701 (Placement of Children- license) Neb. Rev. Stat. § 43-906 (Children Committed to the Department- adoption consent) Neb. Rev. Stat. § 43-1103 ( Interstate Compact for the Placement of Children) Neb. Rev. Stat. §§ 43-1301, 1308, 1311, 1314 (Foster Care Review Act- terms, state or local board duties, person or court in charge of child, notice) Neb. Rev. Stat. §§ 71-1906, 1906.01 (Foster Care Licensure- Native American foster homes intent and rules and regulations)
New Mexico	N.M. Stat. Ann. §§ 24-22-1.1, 2, 5 (Safe Haven for Infants- purpose, definitions, department responsibilities) N.M. Stat. Ann. §§ 32A-1-8, 14 (Children’s Code General Provision’s Act- notice to Indian tribes, tribal court jurisdiction) N.M. Stat. Ann. § 32A-2-32 (Delinquency Act-confidentiality of records) N.M. Stat. Ann. §§ 32A-3B-16, 19, 22 (Family in Need of Court-ordered Service- dispositional judgment, periodic review of dispositional judgment, confidentiality of records) N.M. Stat. Ann. §§ 32A-4-6, 18, 21, 22, 25, 28, 29, 32, 33 (Abuse and Neglect Act- taking into custody penalty, custody hearing, predisposition studies, disposition judgment, periodic review of disposition judgment, termination of parental rights, termination procedure, permanent guardianship procedure) N.M. Stat. Ann. § 32A-5-4 (Adoption Act- application of the federal Indian Child Welfare Act) N.M. Stat. Ann. §§ 32A-5-7, 13, 15-17, 21, 26-28, 36 (Adoption Act- clerk of court duties, request for placement, termination of parental rights, termination procedures, persons whose consent or relinquishments are required, form of consent or relinquishment, petition, form of service waiver, response to petition, disposition) N.M. Stat. Ann. §§ 32A-11-1 to 7 (Interstate Compact on Placement of Children) N.M. Stat. Ann. §§ 40-10B-5, 6, 8 (Kinship Guardianship- petition, notice, hearing)
Nevada	Nev. Rev. Stat. § 432B.397 (Protection of Children from Abuse and Neglect- inquiry to determine whether child is Indian child; report to court; training regarding requirements of ICWA)
North Carolina	N.C. Gen. Stat. § 143B-139.5 (Department of Health and Human services- state/county share of costs) N.C. Gen. Stat. § 48-1-108 (Adoption- adoptees subject to Indian Child Welfare Act) N.C. Gen. Stat. § 48-3-605 (Adoption- Execution of consent)
North Dakota	N.D. Cent. Code § 14-14.1-03 (Uniform Child Custody Jurisdiction and Enforcement Act- applicability to Indian tribes) N.D. Cent. Code § 27-20-32.3 (Uniform Juvenile Court Act- active efforts for Indian child)
Oklahoma	Okla. Stat. tit. 10 §§ 40.1 to 40.9 (Indian Child Welfare Act) Okla. Stat. tit. 10 § 557 (Interstate Compact on the Placement of Children) Okla. Stat. tit. 10 §§ 7005-1.3, 1.5 (Children’s Code- inspection of records without court order, release of records to Indian tribes) Okla. Stat. tit. 10A §§ 1-4-813, 1-6-103, 1-7-106 (Children’s Code- post adoption agreements, inspection of records without court order, rights and duties of persons/agencies receiving custody) Okla. Stat. tit. 10 §§ 7503-1.2, 7505-1.5, 3.1, 7510.1-2, 1-3 (Adoption- extrajudicial consent, visitation agreement, petitions for adoption, subsidized adoption programs) Okla. Stat. tit. 10A §§ 1-1-105, 1-4-204, 1-4-707, 1-4-710 (Adoption- court proceedings definitions, placement preferences, dispositional orders, guardianship) Okla. Stat. tit. 10 §§ 7304-1.1, 7307-1.4 (Juvenile Code- Conditions of detention, inspection of records) Okla. Stat. tit. 10A, § 2-2-101 Okla. Stat. tit. 10A §§ 2-3-101, 2-6-105 (Juvenile Code- definition, disclosure of records) Okla. Stat. tit. 30 § 2-117 (Oklahoma Guardianship and Conservatorship Act- qualified relative)
Oregon	Or. Rev. Stat. §§ 109.309, 312, 350 (Adoption- petition, consent, decree) Or. Rev. Stat. § 125.025 (Protective Proceedings-court authority) Or. Rev. Stat. § 418.627 (Child Welfare Services- Placement consistent with ICWA) Or. Rev. Stat. §§ 419A.116, 419B.090, 118, 150, 171, 185, 192, 340, 365, 366, 452, 476, 498, 500, 875, 878, 923 (Dependency- judicial review, duty of parents and guardians, venue, authorization for protective custody, report of person taking child into custody, removal hearing, placement preferences, petition for permanent guardianship, rights of limited participation in guardianship proceeding, report to be sent to parents or tribe, powers and duties of the court, petition for termination of parental rights, parties to proceedings, notification of Indian tribe, modification of order)
South Carolina	S.C. Code Ann. § 27-16-80 (The Catawba Indian Claims Settlement Act- tribal court jurisdiction)
South Dakota	S.D. Codified Laws Ann. § 25-5A-14, 36 (Voluntary Termination of Parental Relation- due regard to the Indian Child Welfare Act) S.D. Codified Laws Ann. § 25-6-24 (Adoption- due regard to the Indian Child Welfare Act) S.D. Codified Laws Ann. §§ 26-7A-2, 15.1, 15.2, 43, 44 (Juvenile Court- application of Indian Child Welfare Act, notice, required information, summons) S.D. Codified Laws Ann. §§ 26-8A-29.1, 32, 33 (Protection of Children from Abuse and Neglect- regard to be afforded Indian Child Welfare Act, request for hearing)
Tennessee	Tenn. Code Ann. § 36-1-111 (Adoption- sworn statement of compliance with ICWA)
Utah	Utah Code Ann. §§ 62A4a-205.1, 206 ( Child Welfare Services, prohibition of discrimination based on race, procedural due process) Utah Code Ann. §§ 78-3a-307, 315 (Abuse, Neglect, and Dependency Proceeding- placement, review of foster care removal)
Vermont	Vt. Stat. Ann. tit. 15A § 1-107 (Adoption- proceedings subject to ICWA) Vt. Stat. Ann. tit. 15A §§ 2-406, 3-304, 3-703 (Adoption- consent, petition, disposition) Vt. Stat. Ann. tit. 33 § 5120 (Juvenile Proceedings- proceeding subject to ICWA) Vt. Stat. Ann. tit. 33 § 5255, 5307 (Juvenile Proceedings- children in custody, temporary care hearing)
Washington	Wash. Rev. Code § 13.38.010 et.seq. (Washington state Indian child welfare act) Wash Rev. Code § 13.34.040 (Juvenile Court Act- application of ICWA) Wash Rev. Code §§ 13.34.132, 250 (Juvenile Court Act- termination of parent child relationship, placement preferences for Indian children) Wash Rev. Code § 13.36-30 (Guardianship- application of ICWA) Wash Rev. Code §§ 13.70.010, 020, 100, 110, 150 (Substitute Care of Children- review board) Wash Rev. Code § 26.10.034 (Non-parental Action for Child Custody-application of ICWA) Wash Rev. Code §§ 26.33.040, 045, 150, (Adoption- application of ICWA, race consideration in placement exceptions, petition) Wash Rev. Code §§ 74.13.360, 368 (Child Welfare Services- performance based contracts, contracts with tribes)
Wisconsin	Wis. Stat. § 46.40 (Social Services- community aid funding) Wis. Stat. §§ 48.01, 28, 255, 42, 48, 977, 981 (Children’s Code- intent, custody of Indian children, petition, termination of parental rights, authority of department, appointment of guardian, abused and neglected children) Wis. Stat. § 822.04 (Child Custody- application to Indian tribes) Wis. Stat. §§ 938.028, 255, 355 (Juvenile Justice Code- custody of Indian children, petition, dispositional orders)
Wyoming	Wyo. Stat. § 14-3-412 (Child Protection Act- petition)

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Brief State Statutes Related to the Indian Child Welfare Act

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Recent State Legislative Enactments

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