Legal Resource Guide
Your ICWA Rights in California and New Mexico
A guide for Native parents and guardians involved in child custody or child welfare cases.
What Is ICWA?
The Indian Child Welfare Act (ICWA) is a federal law passed in 1978 to protect Native American children and preserve their connections to their tribes, families, and cultures. ICWA was enacted in response to the alarming rate at which Native children were being removed from their families and placed in non-Native homes.
ICWA establishes minimum federal standards for the removal and placement of Native children in foster care, adoptive homes, and other out-of-home placements.
Does ICWA Apply to Your Case?
ICWA applies when:
- The child is a member of a federally recognized tribe, OR
- The child is eligible for membership and is the biological child of a tribal member
- The case involves foster care placement, termination of parental rights, or adoptive placement
Important: ICWA generally does not apply to custody disputes between parents in divorce proceedings, unless the state is seeking to place the child in foster care or terminate parental rights.
Key ICWA Protections
Notice Requirements
When a court knows or has reason to know that a child may be an “Indian child,” it must notify the child’s tribe and parents of the proceedings. The tribe has the right to intervene in the case.
Active Efforts Requirement
Before a Native child can be removed from a parent, the state must demonstrate that “active efforts” were made to prevent the breakup of the family. This is a higher standard than the “reasonable efforts” required in non-ICWA cases.
Higher Burden of Proof
To remove a child for foster care, the court must find by “clear and convincing evidence” that continued custody by the parent is likely to result in serious harm. To terminate parental rights, the standard is “beyond a reasonable doubt.”
Expert Witness Requirement
No foster care placement or termination of parental rights can occur without testimony from a qualified expert witness who can speak to tribal customs, family structure, and child-rearing practices.
Placement Preferences
When placing a Native child, ICWA requires preference be given to: (1) a member of the child’s extended family, (2) a foster home licensed by the tribe, (3) an Indian foster home licensed by a state, or (4) an institution approved by the tribe.
ICWA in California
California has enacted additional protections that go beyond federal ICWA requirements:
- California courts must ask about tribal membership at the first hearing
- The California Department of Social Services maintains an ICWA compliance unit
- California law requires documentation of active efforts in detail
- Tribes must be notified within specific timeframes
- California recognizes 109 federally recognized tribes within the state
ICWA in New Mexico
New Mexico also provides strong ICWA protections:
- The New Mexico Indian Family Protection Act reinforces ICWA requirements
- State courts regularly coordinate with tribal courts on ICWA cases
- New Mexico is home to 23 federally recognized tribes, including the Navajo Nation
- Tribal courts may have concurrent or exclusive jurisdiction over some child welfare matters
- Transfer to tribal court is available upon petition
Your Rights as a Parent or Guardian
If you are involved in an ICWA case, you have the right to:
- Receive proper notice of all proceedings
- Have your tribe notified and given the opportunity to intervene
- Request transfer of the case to tribal court
- Demand that the state prove it made “active efforts” to keep your family together
- Have a qualified expert witness testify before any removal or termination
- Appeal if ICWA procedures were not followed
- Have placement preferences honored if your child must be placed outside your home
What to Do If Your Child Is Removed
If child welfare authorities have removed or are seeking to remove your child:
- Act quickly: Time limits in child welfare cases are short
- Contact your tribe: They can intervene and provide support
- Document tribal membership: Gather enrollment documents or eligibility information
- Request an attorney: You have the right to legal representation
- Attend all hearings: Your presence matters
- Ask about ICWA compliance: Make sure proper procedures are followed
Important: ICWA violations can be grounds for invalidating a foster care placement, termination of parental rights, or adoption. If you believe ICWA was not followed in your case, consult with an attorney immediately.
Need Help With an ICWA Case?
Our attorneys have extensive experience protecting the rights of Native families.