25 C.F.R. § 23.131

What placement preferences apply in foster-care or preadoptive placements?

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(a) In any foster-care or preadoptive placement of an Indian child under State law, including changes in foster-care or preadoptive placements, the child must be placed in the least-restrictive setting that:

(1) Most approximates a family, taking into consideration sibling attachment;

(2) Allows the Indian child's special needs (if any) to be met; and

(3) Is in reasonable proximity to the Indian child's home, extended family, or siblings.

(b) In any foster-care or preadoptive placement of an Indian child under State law, where the Indian child's Tribe has not established a different order of preference under paragraph (c) of this section, preference must be given, in descending order as listed below, to placement of the child with:

(1) A member of the Indian child's extended family;

(2) A foster home that is licensed, approved, or specified by the Indian child's Tribe;

(3) An Indian foster home licensed or approved by an authorized non-Indian licensing authority; or

(4) An institution for children approved by an Indian Tribe or operated by an Indian organization which has a program suitable to meet the child's needs.

(c) If the Indian child's Tribe has established by resolution a different order of preference than that specified in ICWA, the Tribe's placement preferences apply, so long as the placement is the least-restrictive setting appropriate to the particular needs of the Indian child, as provided in paragraph (a) of this section.

(d) The court must, where appropriate, also consider the preference of the Indian child or the Indian child's parent.

Notes of Decisions

Cited in 9 cases (5 in the last 5 years), 2017–2026 · leading case: Blythe P. v. State of Alaska, DHSS, OCS, 524 P.3d 238 (Alaska 2023).

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Blythe P. v. State of Alaska, DHSS, OCS, 524 P.3d 238 (Alaska 2023). “§ 1915 (b) (establishing placement preferences for Indian child in foster care); see also 25 C.F.R. § 23.131 (2023) (same). An Indian child must be placed according to statutory placement preferences unless good cause exists to deviate.”

San Diego Cnty. Health & Human Servs. Agency v. T.C. (In re A.F.), 226 Cal. Rptr. 3d 890 (Cal. Ct. App. 5th 2017). “" ( 25 C.F.R. § 23.131 (c) (2017), italics added.”

Interest of M.D., 2018 SD 78 (S.D. 2018). “See 25 C.F.R. § 23.131 (2016). 6 The State's brief asserts that "courts across the country have been .”

Dept. of Human Servs. v. D. E. A., 314 Or. App. 385 (Or. Ct. App. 2021). “(requiring an Indian child to be placed “within reasonable proximity to his or her home, taking into account any special needs of the child”), with 25 CFR § 23.131 (a)(3) (requiring an Indian child to be placed “in reasonable proximity to the Indian child’s home, extended…”

Cody Elkins & the Cherokee Nation of Oklahoma v. Arkansas Dep't of Human Servs. & Minor Child, 2024 Ark. App. 204 (Ark. Ct. App. 2024). · cites it 3× “It also outlined the placement preferences applied in foster-care or pre-adoptive placements as outlined in 25 CFR § 23.131 (b), which listed in order of preference that must be followed (1) a member of the Indian child’s extended family; (2) a foster home that is licensed,…”

In re Katie T CA1/4 (Cal. Ct. App. 2021). · cites it 2× “§ 1915 (b); 25 C.F.R. § 23.131 (a)(3)). We reject that notion based on fundamental principles of statutory construction.”

Cora C. (Maternal Aunt) v. State of Alaska, DHSS, OCS (Alaska 2018). · cites it 2× “§ 1915 (b)(I); 25 C.F.R. § 23.131 (b) (2016). 18 25 U.S.”

In re A.F. (Cal. Ct. App. 2017). “" ( 25 C.F.R. § 23.131 (c) (2017), italics added.”

In Re Dependency of M.K. (Ariz. Ct. App. 2026). “321(b) (juvenile court “must” follow 25 C.F.R. §§ 23.131 through 23.132 in departing from ICWA placement preferences).”

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