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Tribal Rights in Court under ICWA

Introduction

An Indian Tribe has the right to be involved in cases regarding an Indian child from their tribe. This could be an adoption case in district or juvenile court or another case involving a child in juvenile court. 

The Tribe can either file a Motion to Intervene, asking to be a party in the case, or they can just participate. This page explains when and how a Tribe can be involved in a case and the difference between filing a Motion to Intervene and participating.

These rights come from the Indian Child Welfare Act (ICWA). This law is intended to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902). ICWA was passed in 1978 in response to the large number of Native children who were being separated from their parents, extended families, and Tribes through state child protection and private adoption agencies.

If you are not representing an Indian tribe and need to intervene in an adoption case in district court, see our page on Motion to Intervene in Adoption.
 

When an Indian Tribe can be involved in a case

An Indian Tribe can be involved in a case involving an Indian child (under age 18) who is:

  • A member of their federally recognized Tribe, or
  • Eligible for membership in their federally recognized Tribe and their parent is a member of the Tribe

Indian Tribes can be involved in cases regarding:

  • Child welfare,
  • Private adoptions,
  • Guardianships,
  • Termination of parental rights, and
  • Third-party custody matters (where a grandparent is asking for custody of a child)

 

Intervening versus Participating

If a Tribe wants to be involved in a case there are two options: intervene or participate.

  • Intervening means the Tribe is a party to the case and can:
    • speak up in court
    • submit reports to the court
    • ask the court to set or change hearings
    • ask witnesses questions
    • ask the court for orders in the case
  • Participating means the Tribe is not a party to the case, but it can still:
    • receive notice of hearings
    • attend hearings
    • present information at hearings

A Tribe that is only participating in a case cannot ask the court for orders.

Utah Rule of Juvenile Procedure 50(f).

Whether intervening or participating, the Tribe must designate someone to represent the Tribe. This person does not have to be a lawyer.

Supreme Court Rule of Professional Practice 14-802(d)(13).

If the Tribe wants to intervene, it should file the following, available in the forms section below:

  • ICWA Motion to Intervene
  • ICWA Order Granting Motion to Intervene; and
  • Notice of Designated Tribal Representative in a Court Proceeding Involving an Indian Child

File all of the papers with the court and send copies to everyone who is a party in the case. See our page on Serving Papers for more information.

If the Tribe wants to participate it should file the following in the forms section below

  • Notice of Designated Tribal Representative in a Court Proceeding Involving an Indian Child

File the Notice with the court and send copies to everyone who is a party in the case. See our page on Serving Papers for more information.

District or Juvenile Court?
Choose the right forms based on where the case is filed. The case could be in district court or juvenile court. Look at any court papers you have or call the court to find out what kind of court it is.

Change in Tribal Representation

If the Tribe needs to change the person representing them in the case, the Tribe can file a new Notice of Designated Tribal Representative in a Court Proceeding Involving an Indian Child and send copies to everyone who is a party in the case.

 

Forms

  • 1103JU
  • 1104JU
  • 1105JU

 

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