This resource is intended for practicing case workers in the state of Wisconsin and assumes you have already completed the following training.
- Permanence Section 2 – WICWA online training (09:45)
- Case Practice with American Indian Tribes Foundation Training classroom training (2 days)
If you have completed the training but need a quick refresher, click here.
Please take a moment to watch this short video to orient yourself to the WICWA Online Resource for Case Workers.
What is ICWA and WICWA?
ICWA is the federal Indian Child Welfare Act
- Was passed in 1978 in response to the alarming percentage of Indian children removed from their families.
- Prevents the unwarranted breakup of American Indian families.
- Recognizes the right of the Indian child’s tribe to make decisions involving the removal of Indian children from their homes.
- Provides the Indian child’s tribe with the right to be a participating party in the state court process.
- Requires active efforts to prevent the break-up of the Indian family.
- Establishes minimum federal standards that county and/or state courts must follow when Indian children are removed from their homes and placed in foster care or adoptive homes.
Wisconsin codified ICWA into chapter 48 in 2009, creating the Wisconsin Indian Child Welfare Act or WICWA.
- WICWA allows practitioners to have all the information in one place so that workers and judges can see how the federal law works within our state code.
- There were many areas of the federal law that were vague and undefined. WICWA clarifies many of these “gray areas” and allows for best practice to occur in Wisconsin.
- The passage of WICWA has provided Wisconsin an opportunity to develop resources to assist workers in understanding and complying with the federal and state mandates. (see Resources)
Why is ICWA and WICWA Important?
- The standards established by W/ICWA are best practice and considered the golden standard for case work.
- Ensuring early and consistent application of W/ICWA will prevent delayed permanency or invalidation of proceedings.
- Early and consistent engagement with tribal partners will ensure culturally sensitive decision-making.
- Failure to follow the mandates of ICWA/WICWA may result in invalidation of the proceedings.
- Case workers may have to re-file their cases, start proceedings over so that they are in compliance, children may be returned to unsafe situations, children may have delayed permanency, or nullification of adoption orders.
- None of these situations are in the best interest of children.
- Regulations are political-based, not race-based because of the historical and political relationship between the federal government and sovereign tribes.
- The active efforts standards established by W/ICWA are best practice and considered the golden standard for case work. These standards should be applied to casework for all families whenever possible.
W/ICWA applies to court proceedings involving an Indian child which could result in any of the following:
- An adoptive placement
- An out-of-home care placement
- A pre-adoptive placement
- A termination of parental rights
- A delegation of powers by a parent regarding the care and custody of an Indian child for longer than one year.
Delinquency proceedings, other than Juveniles in Need of Protection and Services (JIPS), and custody determinations in divorce proceedings are not covered under WICWA.
WICWA applies to JIPS cases. These are the juveniles who are uncontrollable, truant, dropouts, or runaways.
A court may NOT determine W/ICWA does not apply based on whether the Indian child part of an existing Indian family. For example, if an Indian child is not residing with an Indian family at the time of placement, W/ICWA would still apply to that proceeding.
Even if a tribe chooses not to participate, the state/county worker must still adhere to WICWA requirements for the duration of the case. In addition, parents cannot choose to opt out of WICWA. Parental desire to not involve the tribe does not relieve the state/county worker from WICWA requirements.
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- Tribes have exclusive jurisdiction over child welfare matters if the child resides or is domiciled on the reservation or when the child is a ward of the tribal court.
- The domicile of the child is generally that of the parent. Domicile is the permanent residence of a person; a place to which, even if they were temporarily absent from, they intend to return.
- Exclusive jurisdiction does not divest the State courts of the authority to remove a child from his or her home in order to prevent imminent physical damage or harm to the child. However, the person taking the Indian child into custody or the intake worker must:
- immediately release the Indian child upon determining that holding the child in custody is no longer necessary to prevent imminent physical damage or harm, and
- expeditiously restore the child to his or her parent or Indian custodian, or
- release the child to an appropriate official of the Indian child’s tribe, or
- initiate an Indian child custody proceeding [Ref. s. 48.028(3)(b)(2); 938.028(3)(b)(2)]
A court can make a Good Cause finding to deny a transfer to tribal court and the reasons for doing so must be stated orally on the record or provided in writing on the record and to the parties.
Good cause cannot be determined based on the following:
- Whether the proceeding is at an advanced stage if the parent, Indian custodian, or tribe did not receive notice until an advanced stage
- Whether there were prior proceedings involving the child and no petition to transfer was filed during the previous proceeding
- Whether transfer could affect the child’s placement
- Child’s cultural connections with the tribe or reservation
- Socioeconomic conditions or any negative perception of tribal social services or court system
- County/State worker should not assume the tribe will request transfer and should not actively solicit such transfer.
- Tribes will take many things into consideration when deciding whether to request transfer. Oftentimes, availability of resources will be taken into consideration.
- Do not assume a tribe will or will not request transfer based on decisions made in other cases.
- If a decision to transfer is made, the process may take time and cause confusion. Maintaining communication and collaborative relationships is important.
- WICWA compliance is still mandated during the timeframe that a transfer is pending or in process.