Oregon Administrative Rules › Chapter 413 - DEPARTMENT OF HUMAN SERVICES, CHILD WELFARE PROGRAMS › Division 115 - APPLICATION OF THE INDIAN CHILD WELFARE ACT (ICWA) › Section 413-115-0010 - History, Purpose, and Applicability

Current through Register Vol. 63, No. 7, July 1, 2024
(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 ," Congress enacted
			 the
Indian children 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.