The Indian Child Welfare Act (ICWA) is a federal law that seeks to protect Native American and Alaska Native children, families and Tribes. The Indian Child Welfare Act became law in 1978 in response to historically discriminatory practices and an alarming number of American Indian children being removed by state governments from their families and placed in non-Indian homes, isolated from their tribe, their history and their culture.

Even now, more than 45 years after ICWA was enacted, over a third of Montana children in foster care are Native American. In contrast, less than 10% of children in Montana are Native American. In 2023, partially in response to these numbers, Montana created a similar state act called the Montana Indian Child Welfare Act (MICWA). The 2025 Montana Legislature extended MICWA indefinitely.

For ICWA and MICWA to apply in a DN case, the child must be an "Indian child" as defined by those acts. An Indian child, as defined by those acts, is an unmarried person under the age of 18 who is either a member of a federally recognized Indian Tribe or is eligible for membership in a federally recognized Indian Tribe and the biological child of a member of a federally recognized Indian Tribe. 25 U.S.C. § 1903(4); MCA 41-3-1303(8). Thus, some children who identify as Native American may not meet the definition of an Indian child through ICWA and MICWA.

The court's standards for reviewing a DN case are more significant when an Indian child is involved. The efforts that need to be made by CFSD are higher in an ICWA/MICWA case. The child's tribe could become involved in a DN case to protect the child's rights as a member or person eligible for membership. The Tribe may become a party in the case, or the matter could even be moved to the Tribal Court. However, parents have an absolute right to object to transferring a case from a Montana District Court to a Tribal Court. 25 U.S.C. § 1911(b); MCA 41-3-1310(3). That means a parent can effectively veto a transfer to a Tribal Court.

The Child and Family Services Division is responsible for reaching out to a child's potential Tribe or Tribes to determine the child's membership or eligibility for membership. Thus, the Tribe or Tribes have the power to decide whether the child is an Indian child. The Child and Family Services Division and the court cannot make that decision on their own.

As a PHC facilitator, you must explore whether ICWA and MICWA apply or may apply to a DN case during the PHC. Even if ICWA and MICWA may only apply, courts generally treat the case as an ICWA/MICWA case until it is proven otherwise. Thus, you will need to explore whether or not the parents and children have Native American ties or ancestry during PHCs. If so, examine the details of those affiliations, including any Tribal memberships or eligibility for Tribal membership. Explore the efforts being made by CFSD to reach out to potential tribes to find out whether a child is an Indian child.

If you'd like to learn more about ICWA and MICWA, please refer to the ICWA eLearning course, available through the eLearning link on the Court Improvement Program's website at cip.mt.gov.