B.  The ICWA and Child Custody Proceedings





25 U.S.C. § 1903(1)(i)
25 C.F.R. § 23.2(1)
25 U.S.C. § 1903(1)(ii)
25 C.F.R. § 23.2(2).
25 U.S.C. § 1903(1)(iii)
25 C.F.R. § 23.2(3).
25 U.S.C. § 1903(1)(iv)
25 C.F.R. § 23.2(4).
 25 C.F.R. § 23.2(5).
The ICWA controls child custody proceedings involving Indian children.  Child custody proceedings are:
  • Foster care placements, which means any action removing an Indian child from his or her parent or Indian custodian for temporary placement in a foster home, institution, or other home where the parent or Indian custodian cannot have the child returned on demand but where parental rights have not been terminated;
  • Termination of parental rights proceedings, which means any action resulting in the termination of the parent-child relationship;
  • Pre-adoptive placements, which means the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but before or in lieu of adoptive placement;
  • Adoptive placements, which means the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption;
  • Other tribal placements made in accordance with the placement preferences of the ICWA, including temporary or permanent placement of an Indian child in accordance with tribal children’s codes and local tribal custom or tradition.
In re N.B., 199 P.3d 16 (Colo. App. 2007)
The ICWA also applies to stepparent adoptions, even though the child will remain in the custody of one biological parent.

25 U.S.C. § 1903(1)(iv)
In re N.B., 199 P.3d 16 (Colo. App. 2007)
The ICWA does not apply to dissolution proceedings or placement of juvenile delinquents in delinquency proceedings.

Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed. Reg. 67584, 67587 B.3, B.3 commentary
The ICWA applies to status offenses, however, such as truancy and incorrigibility, because those offenses are premised on the conclusion that the present custodian is not providing adequate care or supervision, and to any juvenile delinquency proceeding that results in the termination of the parental relationship.

People in Interest of P.A.M., 961 P.2d 588 (Colo. App. 1998)
The ICWA applies only to eligible tribes. The list of eligible tribes is published at 72 Fed. Reg. 13648-13652.