Adoption Law In South Dakota: Understanding The Indian Child Welfare Act

The Indian Child Welfare Act (ICWA) is a federal law that was passed in 1978, at a time when a disproportionate number of Indian children were being removed from their homes and placed with non-Native adoptive and foster families. Today, ICWA continues to preserve Native American families, tribes, and culture by governing foster and adoptive placements of American Indian children.

ICWA sets guidelines and requirements for how adoption agencies and the child welfare system serve tribal children and birth parents. The Act gives tribes legal authority and a voice in child welfare cases, lists criteria for adoptive and foster homes, and places a priority on keeping Indian children with their relatives or other Indian families.

Under ICWA, states are required to make “active efforts” to provide services to Indian families to prevent the removal of Indian children from the home and to reunify Indian families who have entered the welfare system. Active efforts also include consultation with the child’s tribe in all case-planning decisions and giving the tribe an opportunity to be involved in all decisions affecting the child. Also, a tribe or parent may petition to transfer jurisdiction of a child welfare case to their own tribal court.

For ICWA to apply, the child involved in the custody proceedings must meet the law’s definition of an “Indian child.” Under the Act, an "Indian child" is any unmarried minor who is either of the following:

  • a registered member of a federally recognized Indian tribe; or 
  • eligible to be a member of a federally recognized Indian tribe and the biological child of a member of the tribe

This means that even if a child or birth parent identifies as Native American, he or she must be eligible for tribal membership in order for ICWA to apply. It is up to each individual tribe to determine eligibility and membership requirements.

Brooke Swier Schloss
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Family Law and Estate Planning attorney helping families across South Dakota plan and protect their loved ones