Current through Vol. 42, No. 1, September 16, 2024
(a)
Legal authority. The Federal
Indian Child Welfare Act of 1978 (FICWA or Federal Act) and Oklahoma Indian
Child Welfare Act of 1982 (OICWA or State Act) [10 O.S. §
40 through
40.9] provide
the legal basis for services to Indian children.
(1)
FICWA. The stated purpose of
FICWA is to protect the best interests of Indian children and to promote the
stability and security of Indian tribes and families. FICWA establishes minimum
federal standards for the removal of Indian children from their families and
ensures the placement of Indian children in foster or adoptive homes that
reflect the unique values of Indian culture.
(2)
OICWA. Per 10 O.S. §
40.1,
the purpose of the Oklahoma Indian Child Welfare Act is the clarification of
state policies and procedures regarding the implementation by the State of
Oklahoma of the federal Indian Child Welfare Act, P.L. 95-608. It is the policy
of the State of Oklahoma to:
(A) recognize
that Indian tribes and nations have a valid governmental interest in Indian
children regardless of whether the Indian children are in the physical or legal
custody of an Indian parent or Indian custodian at the time state proceedings
are initiated; and
(B) cooperate
fully with Indian tribes in Oklahoma to ensure the intent and provisions of the
federal Indian Child Welfare Act are enforced.
(b)
Applicability of the Federal and
State Indian Child Welfare Acts.
(1)
Per 10 O.S. §
40.3.
the Oklahoma Indian Child Welfare Act applies to all state voluntary and
involuntary child custody court proceedings involving the Indian child,
regardless of whether the child involved is in the physical or legal custody of
an Indian parent or Indian custodian at the time state proceedings are
initiated.
(2) The Federal and
Oklahoma Indian Child Welfare Acts, apply to each Indian child custody
proceedings involving:
(A) foster care
placement, including any involuntary action that removes the Indian child from
the parent or Indian custodian for temporary placement and parental rights have
not been terminated;
(B)
termination of parental rights, including any action resulting in the
termination of the parent-child relationship;
(C) pre-adoptive placement, including
temporary placement of the Indian child in a foster home or institution after
parental rights have been terminated, but prior to or in lieu of adoptive
placement; or
(D) adoptive
placement, including:
(i) permanent placement
of the Indian child for adoption; or
(ii) any action resulting in a final decree
of adoption.
(c)
ICWA inapplicable in certain
proceedings. The Oklahoma Indian Child Welfare Act, in accordance with
the federal Indian Child Welfare Act, does not apply to child custody
proceeding arising from:
(1) an award of
custody to a parent in a divorce proceeding; or
(2) an adjudication of delinquency, unless
there has been a request for termination of parental rights.
Added at 19 Ok Reg
2209, eff 6-27-02; Amended at 24 Ok Reg 1044, eff 6-1-07; Amended at 30 Ok Reg
839, eff 7-1-13
