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  • Attorney Denise M. Buswa

Removal of Native American Children

When a petition is filed in probate court concerning children that are determined to be Native American, there are procedures that must be followed which are specific to Native Americans pursuant to the Indian Child Welfare Act.

As soon as someone with a Native American child is approached by Child Protective Services or a proceeding is initiated in court, it is important to notify the agency/court that the child is Native American. After a determination that the child is "Indian" under the Indian Child Welfare Act, special steps are taken by the court. The Indian Child Welfare Act (ICWA) applies when the state is attempting to remove a Native American child from his or her parent(s)/guardian(s). Under the Act, before children can be removed from their parents, all methods of solving the issues that led to the petition for removal must be taken. An exception to this is when there is an emergency situation where the children will suffer emotional or physical harm if left in their parents care. The Department of Health and Human Services (DHHS) has specific programs and services that are available to children and their parents, guardians, foster care parents, adoptive parents, Tribes, and extended family.

The purpose of the ICWA is for the preservation of Native American families and their rich culture and to prevent unwarranted removal of Native American children. In order to satisfy this purpose, the Tribe of the children involved in the proceedings is notified of the proceeding. Upon notification, the Tribe can choose to be involved in the state court proceedings or it can remove the matter to its own tribal court. Additionally, when Native American children are removed, they are to be placed in Native American families.

Proceedings involving the removal of children can be very stressful, emotional, and difficult for both the parents and the children. Fortunately, there are steps that can be taken to prevent the permanent removal of children. If you are facing termination of your parental rights - specifically under the ICWA, do not face the government alone; have an experienced attorney by your side that is familiar with the specific laws regarding Native American families to protect your rights.

Below is a link to a video and article regarding the unwarranted removal of Native American children. This video illustrates the importance of having an attorney to protect your rights.

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