ICWA Application in Delinquency Jurisdictions

The Bureau of Indian Affairs’ 1979 guidelines for ICWA states that the Indian Child Welfare Act applies to status offenses.  “Status offenses” are offenses that would not be a crime if committed by an adult. Examples of a status offense are truancy or drinking under age.  Comments in the guidelines say, “…status offenses are usually premised on the conclusion that the present custodian of the child is not providing adequate care and supervision…. For that reason status offenses are treated the same as dependency proceedings and are covered by the Act… .” (Section B.3)

See the American Bar Association’s Fact Sheet on ICWA and Advocacy for Status Offenders.

In California, state law (Welf. & Inst. Code sec 224.3) requires tribal notice under ICWA in juvenile delinquency proceeding under sec. 601 (status offenses) and under sec. 602 which are prosecutions under general criminal law, i.e. for acts committed by a juvenile that would be a crime if committed by and adult.

There is recent California case law regarding applying Indian Child Welfare Act (ICWA) mandates in delinquency jurisdiction:

The 3rd Appellate District decided In re: R.R. (2009) that WIC sec. 224.3 applies in “dual” cases – that is where the offending youth is already in foster care.

Conversely, the 4th Appellate District determined In re W.B. Jr. (2010), that WIC sec. 224.3 can not be applied in the delinquency context, except for sec. 601 status offenses, because of federal preemption.  In essence, the 4th Appellate District court found that the greater protections afforded tribes and Indian youth by state law are preempted by the Indian Child Welfare Act.  The court reasons that state law is preempted because non-status-offenses are expressly excluded in the Indian Child Welfare Act.  On May 10, 2010 this case was accepted for review by the California Supreme Court.

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