(a) ICWA includes requirements that apply whenever an Indian child is the subject of:
(1) A child-custody proceeding, including:
(i) An involuntary proceeding;
(ii) A voluntary proceeding that could prohibit the parent or Indian custodian from regaining custody of the child upon demand; and
(iii) A proceeding involving status offenses if any part of the proceeding results in the need for out-of-home placement of the child, including a foster-care, preadoptive, or adoptive placement, or termination of parental rights.
(2) An emergency proceeding.
(b) ICWA does not apply to:
(1) A Tribal court proceeding;
(2) A proceeding regarding a criminal act that is not a status offense;
(3) An award of custody of the Indian child to one of the parents including, but not limited to, an award in a divorce proceeding; or
(4) A voluntary placement that either parent, both parents, or the Indian custodian has, of his or her or their free will, without a threat of removal by a State agency, chosen for the Indian child and that does not operate to prohibit the child's parent or Indian custodian from regaining custody of the child upon demand.
(c) If a proceeding listed in paragraph (a) of this section concerns a child who meets the statutory definition of “Indian child,” then ICWA will apply to that proceeding. In determining whether ICWA applies to a proceeding, the State court may not consider factors such as the participation of the parents or the Indian child in Tribal cultural, social, religious, or political activities, the relationship between the Indian child and his or her parents, whether the parent ever had custody of the child, or the Indian child's blood quantum.
(d) If ICWA applies at the commencement of a proceeding, it will not cease to apply simply because the child reaches age 18 during the pendency of the proceeding.
Notes of Decisions
Cited in
22
cases (
15 in the last 5 years), 2017–2026 · leading case:
Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018).
Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018).
· cites it 2× “at 38,868 (codified at 25 C.F.R. § 23.103 (c) ). Plaintiffs contrast the text of the 1979 Guidelines where "the use of the term 'good cause' was designed to provide state courts with flexibility" with the Final Rule, which now claims that "Congress intended the good cause…”
In re D.E., 2021 Ohio 524 (Ohio Ct. App. 2021).
“Furthermore, 25 C.F.R. 23.103 provides that ICWA applies when an Indian child is the subject of the following child custody proceedings: (a) ICWA includes requirements that apply whenever an Indian child is the subject of: (1) A child-custody proceeding, including: (i) An…”
Navajo Nation v. Dep't of Child Saf., 441 P.3d 982 (Ariz. Ct. App. 2019).
“§§ 1903 (1)(i), 1912(e) ; 25 C.F.R. § 23.103 (a)(1) (providing that ICWA applies to child custody proceedings, including involuntary proceedings and voluntary proceedings that could prohibit the parent from regaining custody of the child upon demand).”
In re L.A.G., 429 P.3d 629 (Mont. 2018).
“" 25 C.F.R. § 23.103 (a)(1). An "Indian child" is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”
People v. C.A., 417 P.3d 909 (Colo. Ct. App. 2017).
“Does ICWA Apply to this Child? ¶ 12 To ensure that tribes will have an opportunity to be heard, Colorado's ICWA implementing legislation provides that in dependency and neglect proceedings, the petitioning party must "[m]ake continuing inquiries to determine whether the child…”
Matter of Kody II. v. Shaunta JJ., 2026 NY Slip Op 03044 (N.Y. App. Div. 2026).
· cites it 4× “Consistent with its stated purpose to address concerns with the governmental removal of an Indian child from his or her tribal home, relevant federal regulations provide that ICWA does not apply to "[a]n award of custody of the Indian child to one of the parents including, but…”
Matter of Z.N-M., YINC, 2023 MT 202 (Mont. 2023).
“See 25 C.F.R. § 23.103 (2023). Actions under Title 41, Chapter 3, MCA, are child custody proceedings and must comply with ICWA when an Indian child is involved.”
Interest of A.A., A.T., & A.A., 2021 S.D. 66 (S.D. 2021).
“However, the parties have not suggested this fact impacts the applicability of ICWA here, and, in any event, we note that the text of ICWA and its corresponding regulations do not make a distinction between an Indian parent and non-Indian parent.”
Dept. of Human Servs. v. T. G., 342 Or. App. 548 (Or. Ct. App. 2025).
“Here, it was the tribe, through its own tribal pro- cess, that “suspended/modified” father’s parental rights to T in the tribal customary adoption order.”
Dept. of Human Servs. v. T. G., 342 Or. App. 548 (Or. Ct. App. 2025).
“Here, it was the tribe, through its own tribal pro- cess, that “suspended/modified” father’s parental rights to T in the tribal customary adoption order.”
Peo in Interest of AOL (Colo. Ct. App. 2025).
· cites it 2× “§ 1903 (1); 25 C.F.R. § 23.103 (b)(3) (2025) (ICWA does not apply to “[a]n award of custody of the Indian child to one of the parents including, but not limited to, an award in a divorce proceeding.”
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