Library: Policy

340:75-19-2.Legal authority and applicability of the Federal and State Indian Child Welfare Acts (ICWA) to child custody proceedings

Revised 7-1-13

(a) Legal authority.  The Federal Indian Child Welfare Act of 1978 (FICWA or Federal Act) and Oklahoma Indian Child Welfare Act of 1982 (OICWA or State Act)  [10 O.S. § 40 through 40.9] provide the legal basis for services to Indian children.

• (1) FICWA.  The stated purpose of FICWA is to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.  FICWA establishes minimum federal standards for the removal of Indian children from their families and ensures the placement of Indian children in foster or adoptive homes that reflect the unique values of Indian culture.

• (2) OICWA.  Per 10 O.S. § 40.1, the purpose of the Oklahoma Indian Child Welfare Act is the clarification of state policies and procedures regarding the implementation by the State of Oklahoma of the federal Indian Child Welfare Act, P.L. 95-608.  It is the policy of the State of Oklahoma to:

  • (A) recognize that Indian tribes and nations have a valid governmental interest in Indian children regardless of whether the Indian children are in the physical or legal custody of an Indian parent or Indian custodian at the time state proceedings are initiated; and

  • (B) cooperate fully with Indian tribes in Oklahoma to ensure the intent and provisions of the federal Indian Child Welfare Act are enforced.

(b) Applicability of the Federal and State Indian Child Welfare Acts.

• (1) Per 10 O.S. § 40.3. the Oklahoma Indian Child Welfare Act applies to all state voluntary and involuntary child custody court proceedings involving the Indian child, regardless of whether the child involved is in the physical or legal custody of an Indian parent or Indian custodian at the time state proceedings are initiated.

• (2) The Federal and Oklahoma Indian Child Welfare Acts, apply to each Indian child custody proceedings involving:

  • (A) foster care placement, including any involuntary action that removes the Indian child from the parent or Indian custodian for temporary placement and parental rights have not been terminated;

  • (B) termination of parental rights, including any action resulting in the termination of the parent-child relationship;

  • (C) pre-adoptive placement, including temporary placement of the Indian child in a foster home or institution after parental rights have been terminated, but prior to or in lieu of adoptive placement; or

  • (D) adoptive placement, including:

    • (i) permanent placement of the Indian child for adoption; or

    • (ii) any action resulting in a final decree of adoption.

(c) ICWA inapplicable in certain proceedings.  The Oklahoma Indian Child Welfare Act, in accordance with the federal Indian Child Welfare Act, does not apply to child custody proceeding arising from:

• (1) an award of custody to a parent in a divorce proceeding; or

• (2) an adjudication of delinquency, unless there has been a request for termination of parental rights.