Indian Child Welfare Act: Changes to the law in 2021

With a new year comes new law. Part of an attorney’s job is staying up to date on changes that may affect our clients. Many of us desperately waited for 2020 to end but it is vital that we reflect on the changes 2020 brought within ourselves as individuals as well as the changes that occurred within the law. While Oregon saw important legislation regarding the coronavirus pandemic and police accountability, there was another significant piece of legislation that passed regarding the treatment of Indian children within the child welfare system. Juvenile judges, attorneys, and clerks know the routine–“Does ICWA apply?” It is easy to get caught up in the routine and forget the magnitude of that question. The reality is that Indian Children continue to be removed from their homes at higher rates than other non-Indian children.

Clients should be sure to communicate with their attorney if they have reason to believe they or their children have Native American heritage. If new information arises regarding Native American heritage or tribal affiliation, this information is vital and should be shared with an attorney regardless of whether the case is already underway. When it is determined that ICWA applies, it is more difficult for the state to remove children and there is a higher standard at which services must be offered to reunify families.

The federal Indian Child Welfare Act (ICWA) of 1978 was designed to “protect the best interests of Indian children and to promote the stability and security on Indian tribes and families.” The Oregon Indian Child Welfare Act, which is modeled after the federal ICWA, went into effect on January 1, 2021. Similar to the 1978 law, Oregon’s intent is to “address disproportionate rates of removal, to improve the treatment of Indian children and Indian families in the child welfare system, and to ensure that Indian children who must be removed are placed with Indian families, communities and cultures.”

The question posed to attorneys and judges is, “How does the Oregon ICWA differ from the 1978 federal law?” Oregon ICWA makes it clear that that it was designed, in part, to provide “uniform and consistent direction to state courts, tribes and practitioners to prevent unlawful removals of Indian children from their families, and promote the stable placement of Indian children in loving, permanent homes that are connected to family and culture.”

Something that the federal ICWA does not do is provide a roadmap of how exactly to apply its standards in the various types of dependency hearings conducted in Oregon. Additionally, the 1978 law could not account for which standards to apply in permanency hearings. This is because permanency hearings were not required until the passage of the Adoption and Safe Families Act (ASFA) in the late 1990s when there was a push for permanency. As states, and even counties, continue to handle juvenile dependency hearings in their own way, the goal is that Oregon ICWA will provide a clearer picture to attorneys and judges on how to handle matters that involve Indian Children in Oregon proceedings.

Whether or not an attorney feels that they need clarity on when to apply the standards required by ICWA, it is my hope that the passage of this bill will at least serve as a necessary reminder of the unjust treatment of Indian families within this country and state and, therefore, the need to promote the continued preservation of their families and culture.


by Bianca