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Book Chapter

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Few child welfare lawyers routinely confront the application of the Indian Child Welfare Act (ICWA or "the Act"). When the statute applies, however, it is crucial that its provisions be strictly followed. There are at least three reasons why counsel should attempt to ensure that ICWA's provisions are carefully applied. First, ICWA's provisions are jurisdictional. Failure to abide by its requirements invalidates the proceeding from its inception. Indeed, any party or the court may invoke ICWA at any time in the proceeding, including for the first time on appeal. Second, unlike most federal child welfare legislation which provides funding streams to states and therefore may not be enforceable in trial level proceedings, ICWA is substantive law that provides minimum federal standards for addressing any case involving a child who qualifies as an "Indian child." Finally, the failure to adhere to the law's requirements can be disruptive for children, harmful to families, and undermining to tribal authority; it is also burdensome for courts and child welfare agencies. For instance, where the Act's provisions were not properly followed, the United States Supreme Court invalidated an adoption some three years after the completion of the proceedings in the trial court and remanded the case for further proceedings. In addition to the statute itself, counsel should carefully consider the application of the Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings (BIA Guidelines), which, while they do not have binding effect, are entitled to great weight because they represent the construction of the statute by the administrative agency charged with implementing the Act's provisions. Courts in a number of jurisdictions have affirmed ICWA's constitutionality in the face of equal protection challenges. These courts have reasoned in part that the treatment of Indian people is unique not because they belong to a discrete racial group but because they are members of a quasi-sovereign tribe.