OAR 413-115-0010
History, Purpose, and Applicability
(1)
History and Purpose.(a)
On November 8, 1978, utilizing its power over Indian affairs and its “responsibility for the protection and preservation of Indian tribes and their resources,” while acknowledging “that there is no resource more vital to the continued existence and integrity of Indian tribes than their children,” Congress enacted the Indian Child Welfare Act (the Act or ICWA). The Act was passed because Congress found that “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children” by courts and welfare departments and placed in non-Indian foster homes and institutions. In 2016, the Bureau of Indian Affairs (BIA) revisited the ICWA and added a subpart to the regulations to improve ICWA implementation (see 25 C.F.R § 23).(b)
The Act sets forth that it is the policy of this nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children from their families.(c)
Further, the Department has the responsibility to ensure that active efforts must be made to:(A)
Prevent the removal of such children; and(B)
If removal becomes necessary:(i)
Take remedial actions to promote timely return; and(ii)
Place such children in foster or adoptive homes that comply with the placement preferences of the ICWA.(2)
Applicability and Limitations.(a)
The provisions of the ICWA apply when an Indian child is the subject of:(A)
A child-custody proceeding;(B)
An involuntary proceeding;(C)
A voluntary placement agreement, consent to termination of parental rights or voluntary relinquishment;(D)
A proceeding involving a status offense if any part of the proceeding results in the need for out-of-home placement of the child, including a foster care, pre-adoptive, or adoptive placement or termination of parental rights; or(E)
An emergency proceeding.(b)
If the ICWA applies during a proceeding, it will not cease to apply simply because the child reaches 18 during the pendency of the proceeding.(c)
The ICWA does not apply to:(A)
A tribal court proceeding;(B)
A proceeding regarding a criminal act that is not a status offense; or(C)
An award of custody of the Indian child to one of the parents including, but not limited to, an award in a divorce proceeding.(d)
Cultural Heritage Protection. In instances where the ICWA does not apply, but the child is biologically an Indian or considered to be an Indian by the Indian community, the Department must respect the child’s right to participate in the culture of origin in case planning. Participation in the culture includes the language, customary beliefs, social norms, and material traits including, but not limited to, the dress, food, music, and dance of a racial, religious, or social group that are transmitted from one generation to another.(e)
The Act does not cover the full range of procedures involved in a juvenile court proceeding; where it is silent, the usual state court procedure applies. Under constitutional law, the Act takes precedence where it conflicts with state law. When federal or state law affords a higher standard of protection than the ICWA, the higher standard applies.
Source:
Rule 413-115-0010 — History, Purpose, and Applicability, https://secure.sos.state.or.us/oard/view.action?ruleNumber=413-115-0010.