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

(a) On November 8, 1978, utilizing its power over Indian affairs and its "responsibility for the protection and preservation of Indian tribes and their resources," while acknowledging "that there is no resource more vital to the continued existence and integrity of Indian tribes 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 homes 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 children 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 tribes and their members. 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 tribes to make decisions regarding the custody of Indian children. The state also recognizes the importance of ensuring that Indian childrenand 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 Actsets 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 children 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:

(d) The Department has the responsibility to ensure that active efforts must be made to:

(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.

(a) The provisions of the ORICWA apply when an Indian child is the subject of:

(b) If theORICWA 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:

(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.