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e-CFR data is current as of September 17, 2020

Title 25Chapter ISubchapter DPart 23Subpart I → Subject Group


Title 25: Indians
PART 23—INDIAN CHILD WELFARE ACT
Subpart I—Indian Child Welfare Act Proceedings


General Provisions

§23.101   What is the purpose of this subpart?

The regulations in this subpart clarify the minimum Federal standards governing implementation of the Indian Child Welfare Act (ICWA) to ensure that ICWA is applied in all States consistent with the Act's express language, Congress's intent in enacting the statute, and to promote the stability and security of Indian tribes and families.

§23.102   What terms do I need to know?

The following terms and their definitions apply to this subpart. All other terms have the meanings assigned in §23.2.

Agency means a nonprofit, for-profit, or governmental organization and its employees, agents, or officials 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.

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.

§23.103   When does ICWA apply?

(a) ICWA includes requirements that apply whenever an Indian child is the subject of:

(1) A child-custody proceeding, including:

(i) An involuntary proceeding;

(ii) A voluntary proceeding that could prohibit the parent or Indian custodian from regaining custody of the child upon demand; and

(iii) A proceeding involving status offenses if any part of the proceeding results in the need for out-of-home placement of the child, including a foster-care, preadoptive, or adoptive placement, or termination of parental rights.

(2) An emergency proceeding.

(b) ICWA does not apply to:

(1) A Tribal court proceeding;

(2) A proceeding regarding a criminal act that is not a status offense;

(3) An award of custody of the Indian child to one of the parents including, but not limited to, an award in a divorce proceeding; or

(4) A voluntary 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, chosen for the Indian child and that does not operate to prohibit the child's parent or Indian custodian from regaining custody of the child upon demand.

(c) If a proceeding listed in paragraph (a) of this section concerns a child who meets the statutory definition of “Indian child,” then ICWA will apply to that proceeding. In determining whether ICWA applies to a proceeding, the State court may not consider factors such as the participation of the parents or the Indian child in Tribal cultural, social, religious, or political activities, the relationship between the Indian child and his or her parents, whether the parent ever had custody of the child, or the Indian child's blood quantum.

(d) If ICWA applies at the commencement of a proceeding, it will not cease to apply simply because the child reaches age 18 during the pendency of the proceeding.

§23.104   What provisions of this subpart apply to each type of child-custody proceeding?

The following table lists what sections of this subpart apply to each type of child-custody proceeding identified in §23.103(a):

SectionType of proceeding
23.101-23.106 (General Provisions)Emergency, Involuntary, Voluntary.
Pretrial Requirements:
23.107 (How should a State court determine if there is reason to know the child is an Indian child?)Emergency, Involuntary, Voluntary.
23.108 (Who makes the determination as to whether a child is a member whether a child is eligible for membership, or whether a biological parent is a member of a Tribe?)Emergency, Involuntary, Voluntary.
23.109 (How should a State court determine an Indian child's Tribe when the child may be a member or eligible for membership in more than one Tribe?)Emergency, Involuntary, Voluntary.
23.110 (When must a State court dismiss an action?)Involuntary, Voluntary.
23.111 (What are the notice requirements for a child-custody proceeding involving an Indian child?)Involuntary (foster-care placement and termination of parental rights).
23.112 (What time limits and extensions apply?)Involuntary (foster-care placement and termination of parental rights).
23.113 (What are the standards for emergency proceedings involving an Indian child?)Emergency.
23.114 (What are the requirements for determining improper removal?)Involuntary.
Petitions to Transfer to Tribal Court:
23.115 (How are petitions for transfer of a proceeding made?)Involuntary, Voluntary (foster-care placement and termination of parental rights).
23.116 (What happens after a petition for transfer is made?)Involuntary, Voluntary (foster-care placement and termination of parental rights).
23.117 (What are the criteria for ruling on transfer petitions?)Involuntary, Voluntary (foster-care placement and termination of parental rights).
23.118 (How is a determination of “good cause” to deny transfer made?)Involuntary, Voluntary (foster-care placement and termination of parental rights).
23.119 (What happens after a petition for transfer is granted?)Involuntary, Voluntary (foster-care placement and termination of parental rights).
Adjudication of Involuntary Proceedings:
23.120 (How does the State court ensure that active efforts have been made?)Involuntary (foster-care placement and termination of parental rights).
23.121 (What are the applicable standards of evidence?)Involuntary (foster-care placement and termination of parental rights).
23.122 (Who may serve as a qualified expert witness?)Involuntary (foster-care placement and termination of parental rights).
23.123 ReservedN/A.
Voluntary Proceedings:
23.124 (What actions must a State court undertake in voluntary proceedings?)Voluntary.
23.125 (How is consent obtained?)Voluntary.
23.126 (What information must a consent document contain?)Voluntary.
23.127 (How is withdrawal of consent to a foster-care placement achieved?)Voluntary.
23.128 (How is withdrawal of consent to a termination of parental rights or adoption achieved?)Voluntary.
Dispositions:
23.129 (When do the placement preferences apply?)Involuntary, Voluntary.
23.130 (What placement preferences apply in adoptive placements?)Involuntary, Voluntary.
23.131 (What placement preferences apply in foster-care or preadoptive placements?)Involuntary, Voluntary.
23.132 (How is a determination of “good cause” to depart from the placement preferences made?)Involuntary, Voluntary.
Access:
23.133 (Should courts allow participation by alternative methods?)Emergency, Involuntary.
23.134 (Who has access to reports and records during a proceeding?)Emergency, Involuntary.
23.135 Reserved.N/A.
Post-Trial Rights & Responsibilities:
23.136 (What are the requirements for vacating an adoption based on consent having been obtained through fraud or duress?)Involuntary (if consent given under threat of removal), voluntary.
23.137 (Who can petition to invalidate an action for certain ICWA violations?)Emergency (to extent it involved a specified violation), involuntary, voluntary.
23.138 (What are the rights to information about adoptees' Tribal affiliations?)Emergency, Involuntary, Voluntary.
23.139 (Must notice be given of a change in an adopted Indian child's status?)Involuntary, Voluntary.
Recordkeeping:
23.140 (What information must States furnish to the Bureau of Indian Affairs?)Involuntary, Voluntary.
23.141 (What records must the State maintain?)Involuntary, Voluntary.
23.142 (How does the Paperwork Reduction Act affect this subpart?)Emergency, Involuntary, Voluntary.
Effective Date:
23.143 (How does this subpart apply to pending proceedings?)Emergency, Involuntary, Voluntary.
Severability:
23.144 (What happens if some portion of part is held to be invalid by a court of competent jurisdiction?)Emergency, Involuntary, Voluntary.

Note: For purposes of this table, status-offense child-custody proceedings are included as a type of involuntary proceeding.

§23.105   How do I contact a Tribe under the regulations in this subpart?

To contact a Tribe to provide notice or obtain information or verification under the regulations in this subpart, you should direct the notice or inquiry as follows:

(a) Many Tribes designate an agent for receipt of ICWA notices. The BIA publishes a list of Tribes' designated Tribal agents for service of ICWA notice in the Federal Register each year and makes the list available on its Web site at www.bia.gov.

(b) For a Tribe without a designated Tribal agent for service of ICWA notice, contact the Tribe to be directed to the appropriate office or individual.

(c) If you do not have accurate contact information for a Tribe, or the Tribe contacted fails to respond to written inquiries, you should seek assistance in contacting the Indian Tribe from the BIA local or regional office or the BIA's Central Office in Washington, DC (see www.bia.gov).

§23.106   How does this subpart interact with State and Federal laws?

(a) The regulations in this subpart provide minimum Federal standards to ensure compliance with ICWA.

(b) Under section 1921 of ICWA, where applicable State or other Federal law provides a higher standard of protection to the rights of the parent or Indian custodian than the protection accorded under the Act, ICWA requires the State or Federal court to apply the higher State or Federal standard.

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