OAR 413-115-0010: History, Purpose, and Applicability

(1) History and Purpose. (a) On November 8, 1978, utilizing its power over Indian affairs and its "responsibility for the protection and preservation of Indian tribe s and their resources," while acknowledging "that there is no resource more vital to the continued existence and integrity of Indian tribe s than their children ," Congress enacted the Indian Child Welfare Act ( the Act or ICWA ). The Act was passed because Congress found that "an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children " by courts and welfare departments and placed in non- Indian foster home s and institutions. In 2016, the Bureau of Indian Affairs (BIA) revisited the ICWA and added a subpart to the regulations to improve ICWA implementation (see 25 C.F.R § 23). (b) Despite the passage of the Indian Child Welfare Act in 1978, application of the Indian Child Welfare Act in Oregon courts and Child Welfare remains inconsistent. The Oregon Indian Child Welfare Act (ORICWA) addresses the coordination between and respective roles of the state and tribes regarding the provision of child welfare services to Indian children . ORICWA will provide uniform and consistent direction to state courts, tribes and practitioners to prevent unlawful removals of Indian child ren from their families and if removal occurs promote the stable placement of Indian children in loving, permanent homes that are connected to family and culture. (c) The Legislative Assembly finds that the United States Congress recognizes the special legal status of Indian tribe s and their member s. It is the policy of the State of Oregon to protect the health and safety of Indian children and the stability and security of Indian tribes and families by promoting practices designed to prevent the removal of Indian children from their families and, if removal is necessary and lawful, to prioritize the placement of an Indian child with the Indian child ’s extended family, Tribe and/or tribal community. The state recognizes the inherent jurisdiction of Indian tribe s to make decisions regarding the custody of Indian children. The state also recognizes the importance of ensuring that Indian children and Indian families receive appropriate services to obviate the need to remove an Indian child from the Indian child ’s home and, if removal is necessary and lawful, to effect the child ’s safe return home. The Act sets forth that it is the policy of this nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children from their families. ORICWA creates additional safeguards for Indian children to address disproportionate rates of removal, to improve the treatment of and services provided to Indian child ren 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. When making a determination regarding the best interests of an Indian child , consultation with the Indian child ’s tribe must occur and must consider the following relevant factors: (A) The protection of the safety, well-being, development and stability of the Indian child ; (B) The prevention of unnecessary out-of-home placement of the Indian child ; (C) The prioritization of placement of the Indian child in accordance with the placement preferences under OR ICWA ; (D) The value to the Indian child of establishing, developing or maintaining a political, cultural, social and spiritual relationship with the Indian child ’s tribe and tribal community; and (E) The importance to the Indian child of the Indian tribe ’s ability to maintain the tribe’s existence and integrity in promotion of the stability and security of Indian children and families. (d) The Department has the responsibility to ensure that active efforts must be made to: (A) Prevent the breakup of the family or to reunite the family; and (B) If removal becomes necessary: (i) Take remedial actions to promote timely return; and (ii) Place such Indian children in foster or adoptive homes that are in accordance with the order of preference established by the Indian child’s tribe or within the placement preferences of the OR ICWA . (e) The Department must adopt rules requiring that any report regarding a ward who is an Indian child that the Department submits to the court, including home studies, placement reports or other reports required under ORS chapters 109, 418, 419A and 419B, must address tribal customary adoption as a permanency option. (2) Applicability and Limitations. (a) The provisions of the OR ICWA apply when an Indian child is the subject of: (A) A child -custody proceeding; (B) A voluntary placement agreement , voluntary custody agreement, consent to termination of parental rights or voluntary relinquishment; (C) A proceeding involving a status offense if any part of the proceeding results in the need for out-of-home placement of the Indian child , including a foster care, durable or permanent guardianship , pre-adoptive, or adoptive placement or termination of parental rights; or (D) An emergency proceeding . (b) If the ORICWA applies during a proceeding, it will not cease to apply simply because the Indian child reaches 18 during the pendency of the proceeding. (c) The ORICWA does not apply to: (A) A tribal court proceeding; (B) A proceeding regarding a criminal or juvenile delinquent act that is not a status offense ; or (C) An award of custody of the Indian child to one of the parent s including, but not limited to, an award in a divorce proceeding. (D) An action that does not involve the Department or state court. (d) Cultural Heritage Protection. In instances where the ORICWA does not apply, the Department must respect the child 's right to receive respect, be nurtured, and attend activities in accordance with their background, religious heritage, national origin, and culture within reasonable guidelines as set by the case plan, the visitation plan, and the court. Participation in the culture of origin includes the language, customary beliefs, traditions, culture, religious practices and social activities that are transmitted from one generation to another. (e) ORICWA does not cover the full range of procedures involved in a juvenile court proceeding; where it is silent, the usual state court procedure applies. Under constitutional law, the Act takes precedence where it conflicts with state law. When federal and state law provide different standards of protection, the higher standard applies.